'I^» ::!i i^:j^ia}T ju]>7a / •^ (JnrnjU Cam g>rlfnnl Cibrary ^.,^^^JJ^^^ 021 W57? MERttlTTKINO^ Attorney and Couii3(.lor ^ « Corner State and Tioga Streets, '- , ITHACA, N.Y. t The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021908573 A. TREATISE UPON THE PRINCIPLES GOVERNING THE ACQUISITION AND ENFORCEMENT OF MECHANIC'S LIENS. BY S: ,F. KNEELAND, Counaellor-at-Law. " A painfull work it ie, Til assure yon, and more than difficult ; wherein what toyle hath been taken, and as no man thinketh so no man believeth, but he hath inode-ftve triall."— AwT. A Wood— Preface to the History of Oxford. NEW YORK : MeDIVITT, CAMPBELL Law Pttblishebs. 1876. CO., Dntered according to Act of Congress, in the year 1876, by MoDlYITT, CAMPBELL & CO., In the Oilice of the Librarian of Congress, at Washington. New Yorkj Lange, Little k Co., PrimeM. NaB, 10 to SO Astor Place. TO THE HON.. SAMUEL JONES. Dear Sib: I dedicate this volume to you, not in your reeoguized capacity as a leading member of the New York Bar, nor in your higher character as a distinguished and irreproachable jurist ; but, as is more befitting, in token of that noble charity which extends to the feeblest in the professional brotherhood the encourage- ment fend counsel of one who receiyed its highest honors, not through political intrigue, nor by the mere accident of inherited judicial ability, nor, alone, as a graceful tribute to the memory of your honored Sire, Chancellor Jones, that grand old master in the law — at once the birth and life of our Superior Court — but, rather, as a just recognition of that ripe scholarship and personal fitness, which comes only from long years of unceasing toil. And, sir, when the Bench shall claim its own again, I shall look with no common interest for a clear exposition, by you, of the many dark problems which have received herein the honest but, I fear, crude treatment of Your humble servant, THE AUTHOE. PREFACE. Weee Victor Hixgo to write a treatise upon law, he would first divide the subject into the known and the unknown. A popular vote of the profession would not only assign the Mechanics' Lien Law to the latter class, but would condemn it to remain there. Its very name is an anomaly, and its provisions neither courts nor counsel will inquire into until a case presents itself demanding immediate action. This aversion is not without reason. Under the multitudinous local acts of this State, each different in principle and practice from the other, and all liable to be swept away as soon as partially understood — but slight incentive is held out to thfe student to investigate, or the jurist to establish principles as fleeting as the shadows on a hillside. But the " laborer is worthy of his reward," and the merchant of his profits. A sense of duty, therefore, requires us to assemble together, and harmonize so far as possible, and the practitioner to understand, the leading principles that underlie and govern the construction and application of all laws that may be devised to secure upon landed property, the persons contributing to its improvement. Notwithstanding the learned and successful presen- tation of this subject under the New York City Act of 1863, by R. S. Guernsey, Esq., and the able treatises vi PREFACE. of Phillips and Houck upon tlie general principles ap- plicable to liens, I still hold an author's privilege to claim for his own work a special value in the particular department of law covered by it. A preface without an apology for appearance, and a plea for mercy, is like Hamlet without a ghost. If one reads the entire book for the purpose of criticism, he will receive the greater punishment; moreover, nothing that can be inserted here will either curb a critic or make amends for that which comes hereafter. Why should an author, having done his duty as far as in him lies, attempt to extenuate faults either material in the copy or literal in the print ? The first a judi- cious reader is able to supply ; a little labor will cor- rect the rest ; he that is courteous will remit both. To create and to perfect, is to be more than man. Although text-writers can lay small claim to originality since rules of law most beneficial have already been decreed by higher powers; still, one who exposes thus his common failings to the censure of all men, should be entitled to the soothing application of that good old maxim ; " Nihil simul inverifum est et perfectum." S. F. K. New York, June 1st, 1875. TABLE OF CASES. Alexander v. Slayens Section 146 Allen t>. Culver 117, 133 ■». Ogden 56 . Altliause «. Warren 141 Anderson v. Dillaye 16, 26 Ashdown v. Woods 145 Atkins v. Little 30, 57 Averhill «. Loucka 149 B. ^ Babb V. Keed 11 Bailey v. Adams 139 Baker b. Stackpoole 118, 123 Bank of Charleston v. Curtiss 98, 106 Bank of Chenango «. Hyde 149 Barber b. Reynolds 39 Barclay's Appeal 188 Barker «. Buell 4 Barrows v. Baughman 139 Bartlett v. Kingan 179 Barton ». Hermann 58 Baxter v. Hatchings 85, 37 Beals v. Cong. B'uai J. 182, 190 Beckel v. Petticrew 91, 123 Beidenbecker v. Lowell 118 Belmont v. Smith 17, 20 Benedict «. Dan. & N. R. R. 137 Benson ®. Paine 149 ». Shackford 5 Biddleson ». Whitel 148 Bishop B. Boyle 24 Bissell «. Bissell 181 Black's Appeal 185 Blauvelt v. Woodworth 114 Bliss V. Patten 38 Blocher v. Worthington 182 Board of Ed. v. Greeubaum 87, 190 Bodley «. Deuinead 104, 145 Bolton's Appeal 179 Bottomly v. Grace Ch. 94 Bowen ». Aubrey 136, 137 Bowen «. Lease 333 Brady v. Anderson 139, 141 Brenuan v. Swasey 188 Briggs «. Titus 133 BrinckerhofE «. Board of Ed. 85 Brown i). La Crosse City 198 .». Morrison 30 Browne «. Wellington 181 Burdick d. Moon 31 Burkhardt v. Reisig 57 Busfield B. Wheeler, 7, 68, 164 Butchers' & Drovers' Bank v. Brown 135 Butler V. Rivers 25, 73, 105 i>. Miller 149 Butts V. Cuthbertson 141 c. Caldwell v. Lawrence 7 Campbell v. Furness 105 v. Scaife 55 Carman v. Mclncrow 113 Carothers «. Wheeler 181 Carroll v. Caughlin 113 Carson v. White 188 Carter v. Townsend 141 Cashman v. Bean 175 Cliambers «. Yarnall 105 Chapin v. Persse 5, 57, 94, 105 Chipman e. Martin 149 Choteau v. Thompson 5, 36, 57, 98 Christian County «. Overholt 68 Clark V. Kingsley 4 Clarke v. Burdett 118 Clifton V. Foster 168 Cocheco Bank v. Berry 175 Coddington v. Dry Dock Co. 78, 158 Collins V. Megraw 33 Columbian Manufacturing Com- pany n. Vanderpoel 333 Conklin v. Wood 183 ■ Couover ». Warren 189 Cook, In re 169 Cooke V. Rhine 133 Costello V. Dale 177 Copley V. O'lSTeil 36, 28 Corning ®. Fowler 83, 84 Cotes V. Shorey 5, 57, 94 Cowperthwaite «. Sheffield 125 Cox V. Broderick 31, 44 Crawford ». Severson 7 Crean «. McPee 151 vm TABLE OF CASES. Croskey «. Coryell 57 Crowell «. Gilmore 30 Crystal v. Plannelly 36, 37 Cunningham «. Jones 54, 69 D. Dalles L. & M. Co. v. Wasco M^oolen M. Co. 13, 106 Dame's Appeal 43 Dash V. Van Vlcek 333 Davis V. Anable 149 i>. Fargo 123 V. Farr 205 «. Livingston 188, 190 ». Schuler 183 Day V. Leal 149 Daviess v. Fairburn 333 Dennistouii «. McAllister 66, 69 Derrickson v. Edwards Develin «. Mack Dey, In re Dickinson Col. v. Church Dixon v. La Farge Donahue v. Cromartie Donaldson v. Holmes 1). O'Connor. Donnelly v. Lihby Doughty «. Devlin Downing «. Keinp Dows ». Morewood Drake i>. Mitchell DufEy V. Brady Dunn 1). North Mo. B. R. Dunning!). Clark Dutro V. Wilson E. 97, 109, 179 130 169 136, 165 63,73 80 35 695 84, 163, 191 113, 139, 170 175 133 149 193 85, 87 186 40 Eagleson v. Clark 186 East I. Iron M. Co. ■». Bynum 79 Edwards i>. Derrickson 143 Ellis V. Hamlin 65 Emerson v. St. B. Shawano City 144 Epepsly «. Bailey 183 Ermul V. KuUok 34 Ernst V. Reed 44, 45 Esler V. Peterson 180 Esslinger «. Huebner 57, 91 F. Fetter ■». Wilson 33 Field V. Oberteuffer 101 Pinch v. Redding 145 Findlay v. Roberts 98 First Nat. Bank of Salem v. Red- man 73 Fitch V. Baker 25 Fitzgerald «. First Presb. Ch. 7 Fitzpatrick v. Boylan 381 Foley v. Gough 66,67 Forrester «. Preston 33 Foster «. Fowler 85 Fowler b. Bailley 179 Fox «. Rucker 5 Francis v. Sayles 43 Freethy v. Freethy 3 G. Galbreath b. Davidson 78 Gardner v. Hall 140 Gates V. Davenport 18 Gaty ■». Casey 155 Gay V. Brown 17 Gillenu. Hubbard 68, 67 Gilman v. Brown 139 Godeffroy v. Caldwell 74 Goepp V. Gartjser 106 Goodale «. Walsh 177 Gordon v. South F. C. C, 193 V. Torrey 30 Gorman v. Sagner 139 Gourdier i>. Thorp 139, 132 Gove t>. Cather 34 Graham v. Holt 140, 141, 143 Grant v. Vandercook 14,26 Graves i). Pierce 80 Gray v. Carleton 17 «. Holdship 79 Green v. Fox 144 Greene v. Ely 141 Greenway v. Turner 91 Greenwood ». Tenn. M. Co. 80 Grogan v. McMahan 128 Grogan ■». The Mayor 63 Guy V. Du XJprey 26 H. Hahn v. Dierkes 180 Hallahan «. Herbert 8, 17, 183 Hanesler ■». Mo. Glass Co. 80 Harbeck ■». Southwell 136 Harker v. Conrad 116, 190, 316 Harman v. Allen 43 Harrington v. Trustees of Roch- ester 232 Harsh v. Morgan 20 Hartman D. Barry 137 Hatch V. Coleman 55 Hauptman v. Catlin 31, 83, 123, 170, 187 V. Halsey 62 Hause v. Carroll 57 TABLE OF CASES. IX Haviland v. Pratt 55 Hawley e. Warde 143 Hazard P. Co. v. Byrnes 73, 73 11. Loomis 175 Heamann «. Porter 164 Heck V. Spencer 133 Henderson v. Sturgia 63, 63, 64 Heston «. Martin 188 Hicks V. Murray 190 Higgins «. Lee 133 Highlander; The 144 Hilburn «. O'Barr 33, 190 Hill «. Bishop 5, 57 «. La Crosse & Mil. R. R. 87, 103 ■». Newman 73 «. Southerland 116 a V. Witner 145 Hilliard v. Allen 170 Hills, In re 194 V. Elliott 57 Hinchmau v. Graham 90, ^3 «. Lybrand 38, 55 Hoffman v. Walton 163, 164, 191 Hogg V. Charlton 148 Hoops 1). Parsons 181 Hope Mining Co., In re 73 Hopkins i). Forrester 164, 165 Horton v. Carlisle 5, 57 Hotaling v. Cronise 193 Houghton 1). Blake 57, 94 Howell «. Zerbee 194 Hoyt «. Martense 149 Hubbell ». Sohreyer 7, 163, 170, 175, 183 Hughes V. Peters 33 Hull of a New Ship 7 Hunter ■». Blanchard 5, 94 V. Osterhoudt 133 B. Savage 133 laege v. Bossiei}x Jackson i). Van Valkenberg 180 James «. Morey 147 Jarden ®. Pumphrey 65 Jessup 11. Stone 41 Johnson v. Dewey ' 43 ■». Parker 38 V. Pike 17 Jones V. Shawhan 3 Jorda V. Gobet 66 Jordan ii. Pumphrey 65 K, Kaechlin ii. Mulballow 133 Keller n. Denmead 30, 33, 170 Kelly v. Brown 193 Kent V. N. Y. Cent. E. R. 1 Kerby v. Daly 6 Kidd 11. Wilson 31 Kinney v. Sherman 63, 68 Kinzey v. Thomas 139 Kirby ii. Teal 25 Knabb's Appeal 185, 193 Knapp «. Brown 19, 43, 55 Knight 11. Norris 188 Koon v. Greenman 133 La Crosse & Mil. R. ■». Vander- pool 77 Landers ■». Dexter 106 Laswell v. Presb. Ch. 188 Lex 11. Holmes 31 Lindley v. Cross 193 Linn ii. O'Hara 63, 69 Littlejohn v. Millirons 39 Livermore v. Wright 175 Livingston v. Harris 333 11. Miller 105 Lombard d. Pike 94 Loonie v. Hogan 17, 56, 113 Lumbard v. Syracuse R. R. 4 Lutz v. Ey 64, 140, 170, 185, 187 Lynch ii. Cashman 113 V. Cronan 164 M. Malbon v. Birney 63 Mandeville ■». Reed 105 Marsh «. Oneida Central Bank 116 a Martin v. Eversall 58 Martine v. Nelson 69, 70 Matlack n. Lare 194 Mayor of Alexandria i>. Patten 116 McAuley ?). Mildrum 30,57,105 McBurney v. Bradbury 114 McCall ». Eastwick 55 McCarty n. Carter 35, 38, 30, 33 McCormick v. Los Angeles 13 McCoy V. Quick 193 McDermott v. Palmer 73, 84 McDonnell v. Dodge 38 McGraw v. Godfrey 17 McGreary ii. Osborne 79 McMurray v. Taylor 145 McPheeters v. Merrimac B. Co. 85, 86, 87 McQualde «. Stewart 116 TABLE OF CASES. Meehan «. Williams i5, 55 Mervin v. Sherman 139 Miller «. Clarke 17 «. HolliDgsworth 36, 28, 33, 34 v. Moore Milne «. Huber Mims ®. Macon Miner v. Hoyt Monroe ®. West v. Bishop Montandou v. Deas Morlot «. Lawrence 139, 141 333 138 138, 133 17 54 89, 43, 66, 139 333 Morris Co. Bk. v. Rockaway M. Co. 91 Morrison v. Hancock 38, 91 v. The Laura 143 Muir V. Cross 139 MuUoy ®. Lawrence 170 Mulrey v. Barrow 60, 184 Muldoon V. Pitt 43, 49 Munger v. Green 194 Myers ». Bnchanan 54 Nairn e. Prowse 139 Nazareth Lit. & Ben. ■». Lowe 16 Nelson «. Camphell 97, 101, 103 Neville v. Frost 54 Niagara Bank «. Rosevelt > 118 Nibbe v. Brauhn 66 Nolan V. Gardner 63, 69 Noll e. Swineford 188 Norris v. Croker 333 Noyes v. Burton ^ 44, 46 o. Gates 0. Haley 46 Odd Fellows' Hall v. Masser 69, 90, 93, 141 O'Donnell v. Rosenberg 58 Ogden ■». Witherspoon 233 O'Halloran v. Leachey 192 V. Sullivan 193 Okisko «. Matthews 173 Olds ». Cummings 149 Ombony «. Jones, 14, 31, 89, 79 Oswold V. Buckholz 40 Otis «. Cusack 33 Otley D. Haviland 20 Owens 4). Ackersou 138 Paine o. Bonney 105 Palm ®. O. & M. R. R. 68 Parker v. Anthony 53 Parmelee ». Hambleton 84 Partridge «. Straunge 3 Pattison «. Hull 122 ■0. Faulke 181 Pavne v. Stone 36 Peabody ». E. M. S. 16 Pearsons «. Tincker 7, 9 Peck V. Brnmmagin 11 V. Hensley 183, 184 Pennock «. Hoover 194 People V. Butler , 3 People V. Deming 282 ■ B. Pike 94 Peters ». St. Louis & Ir. Mt. R. R. 1 v. Sanford 149 Phillips 11. Wright 96 Pifer V. Ward 34 Pike n. Irwin 113 Poll Ion v. Mayor of N. T. 60 Power ». McCord 58 Pratt v. Campbell 179 Presb. Ch. ®. Allison 58, 90 Presoott V. Maxwell 113 Pride v. Viles 21 Protection Ins. Co. ®. Hall 55, 157 Protective Union v. Nixon 186 Pryor v. White 144 Q. Quimby v. Sloan Quiu ». Brittaire Quinu ». Sloan 45, 46, 113 31 73 E. Randolph ®. Garvey 17, 45, 63, 118 Rathbuu «. Hayford 105 Reid v. Bk. of Tenn. 20 Reiley v. Ward ' 55 Eeniger v. Fogassa 3 Righter «. StaU 126 Ripley v. Sage County 88 Roach 0. Chapin 88, 187 Robert v. Garnie 117 Roberts «. Fowler 7 V. Jackson 147 Roby «. Corp. of Unv. Vermt. 97 Rockwood V. Wolcott 66 Rogers v. Currier 94 Rposevelt v. Godard 283 Rollin V. Cross s. Salter «. Burt Sanderson D. Taft Schneider «. Hobein Schubert «. Crowley 6, 7, 8, 20, 186 181 54 63, 63, 118, 114 181 TABLE OF CASES. XI 63 146 144 175 24 179 182 1 44, 183 90 183 ? 64, 65, 67 13 113 113 Schwartz «. Saunders Scott V. Orbisou Scudder v. Balkam Secor 1). Sturgis ShaefEer «. Weed Sliafier v. Hull Shelby «. Hicks Simpson v. Dalrymple Sinclair v. Fitch Singerly i). Doerr Smaltz V. Knott Smith fl. Smith V, Brady V. Coe 68, 64, 65, 67, 113, 114 Snyder v. Warren 180 South Carolina R. R. Co, v. Mc- Donald Spalding v. King Spaulding v. Thompson Spencer v. Barnett 55, 168, 170, 175, 176 Springer v. Keyser 193 State of Conn. «. Jackson 183 Steigleman v. McBride 106, 155 ®. Jeffries 132 Stevenson ■». Stonehill 13 Stewart v. Christy 182 V. McQuaide 64, 126 Stockwell 13. Carpenter 17 Stowell V. Lord Zouch 2 Strawn v. Cogswell 193 Stuyvesaut i). Browning 48 Sullivan v. Brewster 63 Summerville v. Wann 80 Sweeny v. McGittigan 170 Sweet V. James 142, 175 Taggard v. Buckmore 94 Taylor «. Baldwin 33 Teaz V. Chrystie 141, 143 Telfer i>. Kiersted 10 Thaxter «. Williams 17 Thomas v. Fleury 58 V. Huesmau 188 «. Kelsey 123 Thompson v. Yates 62, 113 Tibbetta «. Moore 187, 190, 193 Tiernau v. Jackson 146 Tinker v. Qeraghty 62 Tizzard «. Hughes 78 Tombs V. Rochester and Syra- cuse R. R. Co. 184 Tripp V. Cook 69 TrneBdeU«. Gay 77 Truscott D. King 117 Trustees Cald. I. v. Young 43, 101 Tuttle «. Howe 7, 10 u. United States v. Hoyt 149 «. Tynen 283 V. 180 Bales of Cot- ton 233 V. Van Bramer v. Cooper 13 Van Court ». Bushnell 23, 141 Vandyne «. Van Ness 99, 108 Van Rensselaer v. Roberts 118 Vansant «. Allmon 149 Van Vrouker v. Eastern 34 w. * Walker v. Paine 17, 58 Wallace v. Mel choir 90 «. Bassett 232 Ward V. Howard 54 Washburn v. Russell 194 Waterman v. Younger 116 Wayman ■». Cochrane 149, 150 Weathersby «. Sinclair 26, 86 Weber v. Weatherby 85, 80 Webb V. Dickinson 133 Webster v. Hildreth 34 West V. Washington 233 White V. Hewitt 54 Whitemarph v. Hall 18 Whitney ■». Joslin 164, 165 Whittier v. Wilbur 60, 135 Wilder -o. French 54 Willamette «. Remick 73 Williams i). Controllers 85 V. Haughton 124 Wilson V. Commissioners 85, 190 Winder v. Caldwell 3 Wood ®. Donaldson 73 Wood V. United States 282 Yates V. Borough of Meadvllle 13 Yeates v. Weeden 56 Young V. Lyman 11, 60, 135 Young Stone Co. ■». Wardens 127 INTRODUCTORY. Of Liens in G-eneral.— A Hen is a hold or claim which one person has upon the property of another as a security for some debt or charge.* As to the nature of the security, liens may be considered as either retain- ing or charging. A retaining lien is the right to hold possession of the property of another until the satis- faction of a debt. The charging lien is the right to charge property in another's possession with the, pay- ment of a debt or the performance of a duty. Liens have also been divided into particular and general. A particular lien is a right to charge or retain the prop- erty of another for the payment of a debt accruing on account of that specific property. A general lien is a right to retain another's property on account of a general balance due frorn the owner. The retaining lien is both particular and general; the charging lien is only particular. The former is passive, the latter active. The subject-matter of the former is a chose in possession, that of the latter a chose in action. As to the property charged, liens are either real or per- sonal. The former covers real estate and is always a charging lien. The latter covers personal property and is usually a retaining lien. Liens are created either by usage, by act of law, or by act of the par- ties. In this country, liens by act of law arise either * Bouyier's Law Dictionary, tit. " Lien." INTRODUCTORY. LIENS ' TrKDEK THE CIVIL LAW. under tlie common law or by tlie terms of an express statute ; in the latter case they are termed Statutory Liens. Liens are also known and distinguished by the class of persons that they are intended to secure, thus we speak of the innkeeper's lien, the carrieir's lien, the attorney's lien, the broker's or bailees' lien, and the piechanics' lien. The Mechanics' Lien is a particular statutory charge upon real estate given for the security of per- sons improving it by their labor or materials. Mechan- ics have also, by common law, a particular retaining lien for their services upon personal property ; and also a statutory charge, generally designated as a Maritime Lien, upon ships or vessels constructed by them ; but what is generally known as " The Mechanics' Lien," only pertains to real estate. It may be considered an American System, but whether it was created by us through the necessities of a young and rapidly devel- oping country, or whether it was borrowed from the Romans, it is difficult to decide ; the former theory being more acceptable is generally adopted. Same— Under the Civil Law.— A particular charg- ing lien upon real estate for money expended and work performed in its improvement, existed at a very early day among the Romans. No mention of such a custom can be found in the Orations of Cicero, or in the Commentaries of Gains ; but it existed before the days of Justinian, and is set forth in the pandects or digests completed in his reign.* Domat, in his treatise * See L. 34, D. de reb. auct. jud. pass, ; L. 34, § 1, id. ; L. 26, id. ; and L. 5, D. qui pot. INTEODUCTORY. LIENS UlfDEK THE CIVIL LAW. on- the Civil Law, under the title of " Privileges," says : " Architects, and other undertakers, workmen and arti- ficers, who iestow ihew labor on buildings or other works, and who furnish materials^ and in general all those who employ their time, their labor, their care, or furnish any materials, whether it be to make a thing, or to repair it, or to preserve it, have the same privi- lege for their salaries and for what they furnish as the seller has for the price of the thing sold.* The privi- lege of the seller was somewhat similar to that of our vendor's lien, which was taken from the Civil Law, and is thus stated by Domat : " He who has sold an immov- able thing, for which he has not received the price, is preferred before the creditors of the purchaser, and before all others, as to the thing that is sold. For the sale implied the condition that the purchaser should not be the master of the thing till he had paid the price. Thus the seller who has not received the price, may either keep the land or tenement, if the price was to be paid before delivery, or he may follow it into what hands soever it may have passed if he has delivered it before payment."f Under the Civil Law this lien or privilege (privilegium) was extended to the person whose money has been laid out on the improvement of an estate, such as to make a plantation, or to build upon it, or to make additional apartments for the buildings already erected thereon. This principle is not yet en- grafted into the American' system, but it is difficult to see why money should not create the same charge upon * Domat, Part T, Book III, Tit. 1, Sec. 5, Art. IX. t' Domat, Id., Art. IV. 10 INTRODUCTOEY. LIENS UNDER THE CIVIL LAW. land, as materials, when they are both used for the same purpose — the general improvement of the property. The nearest approach to a sub-contractor's lien under the Civil Lavr, is to be found in the provision extend- ing the privilege to him who lends money to the builder. Thus, under their system, if a third person lends to an architect or other undertaker, money which is laid out on a house or any other work, and the said money has been advanced by order of the master for whom the work is to be done, this third person shall have the same privilege as if he had lent the money to the master himself for that purpose. But if the money was lent without the master's knowledge or without his order, and if the master has paid the said under- taker, he who has lent the money will have his action only against the person to whom he lent it. But if the master has not paid the undertaker, this person may use the privilege, whether he has lent the money with his master's order or without it.* Under our system the sub-contractor secures his rights either directly against the property benefited by his work, or indi- rectly against all the property of the owner, by a sub- rogation of the contractor's personal remedies upon the contract. This latter provision existed in the Civil Law, by virtue of what is termed by Domat as a " sub- stitution by an attachment ; " thus, where the contractor has a privilege or lien against the property, and a claim against the owner for the work done, or materials fur- nished thereon, the creditor or sub-contractor may, by an order from the Judge, attach his rights and actions * Domat, Id., Art. X. INTEODUCTORY. 11 MODERN CIVIL LAW STATES. against the owner, procuring what he has attached to be adjudged to him ; and he is thereby substituted to the privileges which his debtor had for the debts at- tached ;* or, as the Pandects have it, " the debt which is attached is adjudged to the attaching creditor, such as it belonged to the debtor."-]- Modern Civil Law States. — With the exception of England, all countries adopting the Civil Law have also adopted its peculiar provisions in reference to the privilege of mechanics and others upon real estate. Thus, in France, architects, contractors, masons, and others employed in building, re-building, or repairing houses, canals, or any other works whatever, have a privilege similar to that under the Civil Law, provided that an estimate has been previously executed by a competent person, nominated officially by the Court within whose Jurisdiction the buildings are situated, for the purpose of verifying the state of the places in relation to the works which the proprietor shall de- clare he has an intention to form, and also that such works have been, within six months from their com- pletion, admitted by a competent person likewise offi- cially nominated.! ^^^^ ^^^ amount of the privilege could not exceed the value set forth in the second statement ; and in case of a sale, either Judicial or vol- untary, of the property charged therewith, it only ex- tended as against the vendor's lien, to the increased value the improvements gave to the property at the * See Strahan's Domat on CiYil Law, Paragraph 1786. f L. 1, 0. de praet, pign. I Code Napoleon, Art. 2110. 12 INTRODUCTORY. THE AMEKICAJT SYSTBH. time of tlie sale.* The Frencli Code, like that of Jus- tinian, extends the privilege to those who have loaned money to pay or reimburse the v\^orkmen, provided such employment be authentically verified by the act of loan, and by the acquittance of the vporkmeh that such payment was made or loaned for that purpose.f A similar provision is engrafted into the Civil Codes of Lower CanadaJ and Sardinia.§ And a security is also provided for persons furnishing money and materials, and performing labor upon the building or repair of houses, under the Civil Code of Louisiana,]] and under the laws of Mexico and Spain.^ The American System. — The mechanics' lien upon real estate,, under the American system, is entirely statutory. The common law idea of a lien was a right to the actual possession of property until some debt connected with it was fully satisfied. To this day, England is without any provision for the protec- tion of persons improving real estate by the erection or repair of buildings thereon. But in a country where improvements are gradual, and real estate is held by a wealthy and conservative class, no real demand arises for such a law. Our first attempt to charge the lien of a mechanic upon real estate, arose from a desire to establish and * Merlin E^pertoire, PriTilege de Creance, Sec. 2. t Code Napoleon, Art. 3103. t Art. 3013. § Code Civil du Eoyaume de Sardaigne, par Foucher, Art. 3158. II Articles 3743-4-5. T See Civil Lav of Spain and Mexico, by G. Schmidt, 301 ; Par- tidas, L. 38 ; Tit. 13, p. 5. INTRODUCTOKY. 13 LIENS IN NEW YORK STATE, improve with all possible speed the City of Washing- ton, upon its adoption as the permanent seat of gov- ernment.* In 1791, Commissioners appointed for that purpose, reported to the General Assembly of Maryland, in favor of a lien for mechanics and others upon buildings, for the reason that it " would encourage master-builders to contract for the erecting and fur- nishing houses for certain prices agreed on, if a lien was created by law for their Just claim on the house erected, and the lot of ground on which it stood." In pursuance with this memorial, such a law was adopted in December of the same year.f When we consider that the original memorial, and doubtless the law itself, was prepared by such statesmen as Madison and Jefferson, it may well be imagined that both the wise provisions of the Civil Law, and the familiar and well- understood doctrine of the artiflcfer's lien on chattels under the common law, entered into the formation of the new system. This American remedy, though limit- ed and imperfect at first, and confined in its operation to a few of the leading cities, has by degrees, as its ne- cessity and justice became apparent, gradually grown in importance and developed in nature until it now has become the settled policy of every State. New York State has never had a complete system applicable to the entire State. The City of New York has always enjoyed a law distinct and peculiar to her- self, and most of the other large cities have at times claimed similar rights. Thus, the City of Buffalo ; the * See Phillips on Liens, p. 11. t Md. Act of 1791, Chap. 45. 14 IFTKODUCTORY. GENEEAL AKBAJSTGEMENT. counties of Kings and Queens, containing the City of Brooklyn and the suburban cities of New York; Onondaga County, containing the enterprising city of Syracuse ; Rensselaer County, with its ambitious Tro- jan City, have each separate acts. The rest of the State is covered by one general law, which will be known in this treatise under the title of " The State Act," the other statutes being designated by their territorial jurisdiction, as, " The Onondaga Act," "The Buffalo Act," "The Kings and Queens Act," etc. General Arrangement. — Part I. will contain the general provisions of law applicable to all liens. In Part II. we shall consider separately the sev- eral acts, with the practice and forms peculiar to each. Part III. is devoted entirely to the Mechan- ics' Lien Statutes, past and present, in this State ; and is mainly beneficial in applying the decisions rendered under former acts to the provisions of the existing statutes. In the treatment of the principles applicable to liens in general, and also where the statutory provis- ions under which given decisions are rendered, are similar to each other or to those of this State, the pro- visions of the statute are not given with the decisions of the courts ; but where a question of statutory con- struction is considered, the terms of the particular statute receiving a given construction are quoted, with the decisions applicable thereto. I have also deemed it advisable, from the special nature of the subject herein presented, and from the extended range of illustrative decisions, to state principles of law in the INTRODUCTORY. 15 GENBEAL AEKANGEMENT. exact language of tlie courts, so that a full reading of the case will nbt be necessary for the practitioner to ascertain how far they will effect analogous ques- tions that may arise in the practice of Mechanics' Liens. \ V PARTIES TO THE LIEN. CHAPTEK I. THE CLAIMANT. § 1. In General, — ^The parties to a Mechanic's Lien consist of tlie claimant, or lienor, and the owner. The claimant is the person for whose benefit, and the owner the person against whom, the lien is filed. In respect to the capacity in which he acts, and the relation borne to the owner, the claimant is usually tenned a con- tractor, sub-contractor, laborer, or material-man. The contractor is the person who makes a contract with the owner.* The sub-contractor is one who has en- tered into a contract with the contractor, or with some other person who has contracted for the performance of the specified act. The sub-contractor in a certain strict sense is always a contractor, and the courts have held under the lien acts that the term " contractor " includes a sub-contractor.f But, as generally under- stood and accepted, the latter term is used to designate one who contracts with some person other than the owner. The term "laborer" is used to designate one who performs work, and " material-man " one who furnishes * Simpson v. Dah-ymple, 11 Cnsh. (Mass.), 308. t Peters v. St. Louis & Iron Mt. E. R, 24 Mo., 586 ; Kent v. New York Central E. E. Co., 13 N. Y., 638. THE CLAIMANT. 17 KESTEICTIOSr OV THE TEEM " ANX PEESON." materials for the owners contractor, or sub-coatractor. If tlie labor is perforrned or material furnished for the owner direct, they rank in law as contractors ; if for any other person lawfully contracting for the same, they are, strictly, sub-contractors. Section 14 of the New York City Act of 1875, expressly says that "All persons entitled to liens on the structure or improve- ment, except those who contracted with the owner thereof, shall be deemed sub-contractors." As regards the legal rights of the parties it may be said, therefore, that the claimant must be either a contractor or a sub- contractor. § 2. "Any Person." — The several Mechanics' Lien Acts of this State unite in making the privilege of a lien as broad as language, can frame it. " Every person " says the New York City Act, " Any person," say the other acts, who performs labor or furnishes materials by the " request " [N. Y. City Act], " consent " [State Act], or " permission " [Kings Co. Act], of the owner, may have a lien. Construing this language strictly, there is no limit to the right so far as parties are concerned. Unfortunately for this simple con- struction, the term " any person " is not always con- strued literally.* It only covers those persons whom it is reasonable to presume the Legislature intended to be designated, and who are capable, legally and physically, of coming within its terms. Thus,, the statute giving a married woman the right to prosecute for slander " any person " who shall defame her char- acter for chastity, does not authorize her to entertain * Freethy v. Freethy, 42 Barb., 641. 18 PAETIES TO THE LIEK THE CONTKACTOE. an action of that nature against her husband.* This principle is stated in numerous English and American decisions.f But it points out only the exceptions to the rule, and it may be stated literally that any person ■who can place himself within the provisions of the statute may secure the benefit of it. The exceptional cases pertain only to those acting under a legal dis- ability or in a representative capacity. § 3. The Contractor. — Although the original con- tractor may sub-let his entire contract, and neither "perform labor" or "furnish materials," in a literal sense, yet he will still be entitled to a lien ; for each sub-contractor is an agent for the performance of a portion of the entire contract, and the act of an agent is in law the act of his principal. Moreover, the Legis- lature could not have intended that one must perform the entire work with his own hands to entitle him to the benefit of the act. It is noticeable, however, that the word " contractor," contained in the 1st Section of the act of 1863, is omitted in the corresponding section of the act of 1875, for New York City. The Supreme Court of the United States, under a provision in the Act of Congress similar in effect to that con- tained in the act of 1875, and in most of the other acts now in force, denied the right of lien to the con- tractor, on the ground that he had an opportunity by his contract with the owner to provide his own secu- rity, and that the act only applied to the mechanics * Preethy v. Freethy, 43 Barb., 641. f Stowell V. Lord Zouch, Plowd., 365 ; Eeniger v. Pogassa, Id. 13 ; Partridge v. Straunge, Id. 88 ; People v. Butler, 3 Cow., 347; Smith V. Smith, 15 How. Pr., 165. THE CLAIMANT. 19 SUB-COKTRACTORS. — GENERAL EMPLOYMENT. and tradesmen wlioge personal labor or property is incorporated into the building.* But as other portions of the several acts in this State expressly provide for the lien of the contractor, there is no doubt of his right to acquire it, except where he forfeits his privilege by his own acts. § 4. Sub-Contractors, Laborers, and Material Men are specially provided for by all the existing statutes in this State, and it makes no difference in what degree they stand to the original contractor, provided the work or material was rendered specially for the build- ing on which the lien is sought.f But where work is done or materials furnished for a sub-contractor, a lien cannot be acquired without there is money due to him and to all the persons standing between him and the owner.t Neither the owner, the contractor, nor any sub- contractor, can be compelled by such proceedings to pay any third party a greater sum than that due to the person with whom he has contracted. § 5. General Employment. — It is essential that the work or materials should have been rendered especially for the particular buildings on which the lien is sought. Thus, a journeyman or laborer employed by the month or year for the performance of work generally, is not entitled to a lien on the building he happens to have been engaged upon at the time of a default in the * Winder v. Caldwell, 14 How. U. S., 434. See also to the same effect, Jones v. Shawhan, 4 Watts' & S. (Pa.), 257. f Clark V. Kingsley, 8 Allen, Mass., 543 ; Lumbard v. Syracuse R. R. Co., 64 Barb., 609 ; Id. on appeal, 55 N". Y., 491; Barker v. Buell, 35 Ind., 397. I Lumbard v. Syracuse R. R. Co., 55 N". Y., 491. 20 PARTIES TO THE LIEN. AOENTS AlfD ASSIGITEES. regular payment. And the mere sale of building materials in the ordinary course of trade, and without reference to any particular building, does not give the merchant a right of lien upon the property actually benefited thereby. f The materials should be furnished for as well as applied wpon some specific property, to entitle the tradesman to a lien.t § 6. Agents. — A person who furnishes materials as an agent, cannot acquire a lien therefor, even though he should afterwards become personally liable for the payment of such materials. He may, however, file the lien in such a case in the name of his principal, and afterwards take an assignment of it.§ Nor is the agent of the owner entitled to a lien for materials pro- cured by him in that capacity, although he afterwards pays for the same personally. || § 7. Assignees.— The right to acquire a lien is a personal one, and cannot be transferred to another. It is given for the personal protection of the one who performs the work or furnishes the materials.^ An assignee is not, therefore, entitled to file a lien for * Fox V. Kucker, 30 Geo. , 525 ; Choteau v. Thompson, 2 Ohio, 114. f Coates V. Shorey, 8 Iowa, 416. X Chapin v. P. & B. Paper Works, 30 Conn., 461 ; Hunter v. Blanchard, 18 111., 318 ; Bennett v. Shackford, 11 Allen (Mass.), 445 ; Horton v. Carlisle, 3 Disney (Ohio), 184; Choteau v. Thomp- son, 3 Ohio, 114 ; Hill v. Bishop, 25 111., 349. § Eollins V. Cross, 45 N. Y., 766. II Kerby v. Daly, Id., 84. I Caldwell v. Lawrence, 10 Wis., 333 ; Pearsons v. Tincker, 36 Me., 384 ; Eollins v. Cross, 45 K Y., 766 ; Eoberts v. Fowler, 3 E. D. Smith, 633. THE CLAIMANT. 21 ASSIGXEES. work done before tlie assignment.* There is no rea- son or equity in this discrimination against assignees, and it is not followed in many of the States. f There is a well-grounded equity rule founded in the Roman Law, that the assignee of a debt secures all the privi- leges and securities possessed by the original creditor.J Under the New York Code,§ an assignment of a debt transfers the entire cause of action and all the remedies incident thereto. It is difficult to see why this will not operate to give the assignee the same right to file a lien, possessed by the assignor. In Maryland the courts hold that where the statute is silent on the subject, the contract and right of lien may be assigned, the same as any other chose in action^ the assignee taking subject to the equities of the original parties. || In this State the Court of Common Pleas, at General Term, held that the right to file a lien passes by as- signment to the remaining partners of a firm on disso- lution.^ This decision was overruled by the Court of Appeals on a question of fact in the ca?e, without passing upon the legal questions involved therein ; the court holding that the partners did not assign their claims, but released them, leaving the claimant the sole owner.** The rule adopted by the Common Pleas * Id.; Fitzgerald v. First Presbyterian Church, 1 Mich. (N. P.), 243. f See Tuttle v. Howe, 14 Minn., 145 ; laege v. Bossieux, 15 Grattan (Va.), 83. X The Hull of a New Ship, Dayies, 199. § Section 427. II Crawford v. Severson, 5 Gill. (Md.), 443. 1" Hubbel V. Schreyer, 14 Abb. Pr. (K S.), 284. ** See Mem., 56 N. Y., 604. 22 PARTIES TO THE LIEN. PEKSOSTAL KEPEESBNTATIVES. is practically similar to that in "Westervelt v. Levy, and followed in Massachusetts in the case of Bushfield V. Wheeler.* § 8. The Same— May file in the name of Assignor. — After the lien has been filed by the original creditor, it becomes a specific interest in real estate, and may be assigned the same as a mortgage ; the assignee be- ing subrogated to all the rights of the assignor. And if the lien is not previously filed, the assignee secures the same privilege by filing it in the name of the as- signor, and he may afterwards foreclose it, either in his own name as assignee, or in the name of the assign- or, f The same rule applies where the assignment is made for the benefit of the assignor, and to be upheld as his agent. J § 9. Iioan or Advancement of Money. — The same principle which prevents an agent or assignee from filing a lien in his own name, acts to debar one who loans money to the claimant on account of the claim, or pays for the contractor the amount due by him to laborers and material men, or who, at the request of the debtor, advances money to pay a third person his claim for services, from acquiring a lien in his own name for a reimbursement.§ § 10. Personal Representatives. — It was formerly considered that the right to acquire a lien was so far a personal privilege as to die with the person, and that * 14 Allen (Mass.), 139. t Hallahan v. Herbert, 11 Abb. Pr. (K S.), 326 ; Palmer v. Merrill, 6 Gush. (Mass.), 282. X Rollins V. Cross, 45 IST. Y., 706. § Pearsons v. Tincker, 36 Me., 384. The rule was different under the Civil Law ; See Infra p. 9. THE CLAIMANT. 23 OWNERS, JOINT TENANTS, ETC. it could not be enforced by the personal representa- tives without it was previously filed by the decedent.* The later and better opinion seems to be that if the right accrued during the life of the decedent it may be perfected after his death by his executors or admin- istrators,f provided the claim is filed within the time required by the statute. The death of the contractor will not prevent sub-contractors from enforcing their rights, provided the contract is completed by his per- sonal representatives or by such sub-contractors. J And where the foreclosure suit is pending at the time of the death of the claimant, the Court, having jurisdiction over the original parties, may order a substitution, as in ordi- nary actions where there has been a change of interest.§ § 11. Owners — Joint Tenants — Tenants in Common. — We have seen that there must be two parties to every lien — the owner and the contractor — it follows that the owner and the contractor cannot be one and the same person. An owner cannot, therefore, enforce a lien on his own building to the prejudice of other encumbrancers. Moreover, should such a lien be crea- ted, it would merge in the superior title of ownership. The members of a voluntary unincorporated associa- tion are considered as copartners and joint owners of property ; they cannot, therefore, secure a lien thereon to the prejudice of other creditors.! But where the * Nott's Lien Law, page 87. f See Tuttle v. Howe, 14 Minn., 145 ; and Telfer v. Kierstead, 9 Abb., 418. I Telfer v. Kierstead, 9 Abb., 418. § See Section 131, Code of Procedure. .11 Babb V. Keed, 5 Kawle (Pa.), 151. 24 PARTIES TO THE LIEN. COKPOKATIONS. title to the property in suet a case is in the name of trustees, there can be no merger; and a member of the association may contract with such trustees as owners, and acquire a valid lien.* A husband cannot acquire a lien by building with common funds a house on the separate property of the wife.f But a tenant in com- mon, being seized per mie but not per tout, may, for work done at the request of his co-tenants, acquire a lien on their undivided shares in the common property. § 12. Corporations. — It is a well-established rule of statutory construction, both in this country and Eng- land, that corporations are to be deemed and consid- ered as persons, where the circumstances in which they are placed are identical with those of natural persons especially included in a statute, if Corporations, in fur- nishing materials to a contractor for the erection of a building, are certainly placed in the same position as a mercantile partnership or a single individual acting in the same capacity. It follows, therefore, that the terra " any person " includes any corporation having the power to furnish materials and to maintain an ac- tion thereon ; and the courts have often recognized this view of the case.§ But a municipal corporation cannot acquire a lien without special authority by statute.! * Young V. Lyman, 9 Penn. (Barr.), 449. f Peck V. Brummagin, 31 Cal., 440. J See South Carolina R. E. Co. v. McDonald, 5 Ga., 531, and cases cited. § See Dalles L. & M. Co. v. Wasco Woolen Mills Co., 3 Oregon, 627. II Yates V. Borough of Meadville, 56 Pa., 21; Borough of Mauch Chunk v. Shortz, 61 Id., 399. THE CLAIMANT. 25 MIjrOKS, MARRIED WOMEJS', ETC. § 13. Minors, Married Women, etc.— Where the right of lien depends upon the existence of a valid contract, the claimant must be capable of contracting. A minor, though he may not be himself bound, may- bind others by his contracts, and the owner having received the benefit of his labor or materials, cannot interpose the defense of infancy to a lien filed by him. This defense is personal to the minor.* In such a case the lien may be filed in the name of the infant, and foreclosed through a guardian. Since the adoption of the Enabling Act in this State, a married woman may acquire a lien in her own name for contracts entered into, materials furnished, or work done by her or her agents. Whenever she acts in a separate capacity, or deals with her separate propei'ty, she acquires all the rights of & feme sole. * Stephenson v. StoneMU, 5 Wheaton, U. S., 706 ; Van Bramer V. Cooper, 3 Johns., 279; Whitmarsh v. Hall, 3 Denip, 375; Gates V. Davenport, 29 Barb., 160. PARTIES TO THE LIEN. CHAPTER II THE OWNEE, § 14. In General. — To charge a person as owner under the Mechanics' Lien Acts of this State, two ele- ments must always exist : Fiest, he must have an in- terest capable of sale under execution* in the lands or improvements sought to be charged. Second, he must have contracted for the performance of the work.f In other words he must not only be an owner, but must hold himself out as owner. | We shall first treat of the interest in the propei'ty requisite to create the stat- utory relationship of " owner," and then of the con- tract by such owner. § 15. The Extent of Title. — The State Act,, as amended in 1875, specifies fully the interest necessary to create the charge. It gives the lien " to the extent of the right, title, and interest of the owner of the property, whether owner in fee or of a less estate, or whether a lessee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title or * See Grant v. Vandercook, 57 Barb., 165. t Muldoon V. Pitt, 54 N. Y., 269. X Ombony v. Jones, 19 N. Y., 234. THE OWNER 27 LEGAL TITLE. interest in real estate, against wliicli an execution at law may now be issued, under the general provisions of the statutes in force in this State relating to liens of Judgment and enforcement thereof."* This defini- tion of an owner embodies the gist of all the decisions in this State, under the questions arising upon a con- struction of the several acts, and may be cited as a clear exposition of the law at the present time under every Mechanics' Lien Statute in this State. The test question in each case is : Has the person for whom the contractor performed the work an interest in the lot or buildings benefited by it, capable of sale under exe- cution ? For it is evident, since the lien must be en- forced by virtue of a sale either under execution or a decree of foreclosure, that the " owner " must have a salable interest in the property charged. This prin- ciple being established, it is easy to apply the familiar rules governing the sales of real estate under an ordi- nary judgment and execution. But there are some peculiarities growing out of the combined relationship of owner and contractor, in lien cases, that will make it necessary for us to investigate the many decisions peculiarly applicable to Mechanics' Liens. § 16. Legal Title. — A party may be charged as owner who holds the title to premises, although the grantor has a vendor's lien upon the same for the entire purchase-money,f and it may be stated as a general rule that legal title to premises, united with the possession, constitutes an ownership within the statute. Thus, * Laws of 1875, Chap. 233, See Part III, Statutes, f Nazareth Lit. & B. Inst. v. Lowe, 1 Ky., 258. 28 PARTIES TO THE LIEN. AQREEMENT OF SALE. — BUILDIIfG COKTEACTS. where a woman holding a deed to property, erects buildings thereon as owner, the land is chargeable with the liens of the mechanics employed by her, al- though the consideration for the purchase of the prop- erty was paid out of trust funds.* § 17. Agreement of Sale — Building Contracts. — It is a matter of common occurrence, especially in the cities of New York and Brooklyn, that a capitalist, in order to dispose of vacant lots, enters into a written agreement with a builder, whereby he agrees to sell them to him at a certain price within a specified time, and in the meantime loans him money to aid in the erection of buildings thereon. Such agreements are generally termed " building contracts ; " the capitalist being known as the vendor, and the builder the vendee. In the absence of an express statute to the contrary, sub-contractors and others, who have performed labor or furnished materials under a contract with the vendee, must look to him and his interest in the property alone for payment. They cannot charge the vendor as " owner,"f even thoiigh the agreement of sale is in parol and void under the statute of frauds.;}: The Court of Appeals has recently held that a lien filed against one, who at the commencement of the work held a .contract to purchase which was afterwards per- * Anderson v. Dillaye, 47 N. Y., 678 ; Peabody v. East Met. S., 5 Allen (Mass.), 540. f Gay V. Brown, 1 E. D. Smith, 735 ; Miller v. Clark, 2 Id., 543 ; Loonie v. Hogan, 9 N. Y., 435 ; Hallahan v. Herbert, 11 Abb. N. S., 336. I Walker «. Paine, 2 E. D. S., 663 ; sed contra, Gray v. Carleton, 35 Me., 481. THE OWNEE. 29 AGREEMENT OF SALE. — "BUILDING CONTRACTS." fected by obtaining the legal title, covers all tbe time of performance, and charges the fee subsequently ac- quired.* Bxit the courts in this country are not unan- imous on the question of ownership in such a case, necessary to charge property with a mechanic's lien. While New Yorkf and lowaj hold that possession under a contract of purchase is sufficient, the converse rule is held in Maine§ and Massachusetts. || But when the agreement of sale or building contract contains a clause to the efEect that if there is any failure on the part of the vendee to fulfil his part of the agreement, his entire interest in the premises shall cease, the ven- dee has not an interest sufficient to charge the estate as owner, in the erection of the buildings provided for in the agreement of sale, without he, or some one in his behalf, fully completes the 6ontract.^- § 18. Same — Effect of the Rule — Statutory Provis- ions.— The application of the rule adopted by the courts in reference to vendors, often creates great hardship to the mechanic, since the failure of the ven- dee contracting for the labor, to fulfil his contract with the vendor, forfeits the land with all its improve- ments to the latter who takes the benefit of the in- creased value without the corresponding liability to the mechanics and material men for its payment. To * jVTcGraw v. Godfrey, 56 N. Y., 610. f Belmont v. Smith, 1 Duer, 675, and cases cited supra. j Monroe v. West, 13 Iowa, 119 ; Stockwell v. Carpenter, 27 id., 119. § Johnson v. Pike, 35 Me,. 291; Gray v. Carleton, id., 481. II Thaxter v. "Williams, 14 Pick., 49. ITEandolph v. Garyey, 10 Abh. Pr., 179 ; (S. 0.) 19 How. Pr., 505. 30 PARTIES TO THE LIEN. AGEEEMBNT OF SALE. — " BUILDISTQ CONTEACTS." remedy this evil, a Section was incorporated into the New York City Act of 1863, to the effect that the vendor, in the agreement of sale with a building con- tract, shall be deemed the " owner," and the vendee the " contractor" for the erection of the buildings there- on. Thus charging the work directly upon the prop- erty benefited by it. This Section, however, was omitted in the act of 1875, and no such provision exists in the State Act. But Section one of the present act for Kings and Queens County, provides that; " In cases in which the owner has made an agreement " to sell and convey the premises to the contractor or " other person, such owner shall be deemed to be the "owner within the meaning and intent of this act, " until a deed shall have been actually delivered, so as " to pass the fee simple of said premises." This pro- vision fully protects sub-contractors, mechanics, and material men; since the building contract connected with the agreement of sale, answers to the original contract with the owner in ordinary cases. § 19. Same— Consent of Party Charged.— But even under this provision, the lien cannot be charged against the vendor as owner when the work is performed un- der a contract with the vendee, unless the building is constructed by the permission or consent of the ven- dor.* This provision of the Statute is designed to charge the land with debts contracted in improving it with the owner's consent, although the contract be made with the vendee. f Where the sale is consum- mated before the filing of the lien, and both the legal * Knapp V. Brown, 45 N. Y., 766. f Id. THE OWNER. 31 EQUITABLE OWNERSHIP. and equitable title is in the vendee, this provision of the statute will not apply, and the lien may be filed against the vendee as owner. The latter having con- tracted for the work to be done, unites both requisites of ownership. And where the contract for labor or materials in such a case is made by the vendor instead of the vendee, and the building contract is consum- mated by a transfer of the fee to the vendee before the filing of a lien, the claimant may file it against the vendee, as his permission will by virtue of the contract be presumed, and the vendor be deemed to have acted as his agent. Under such circumstances, the convey- ance to the vendee would, in legal analogy, relate back to the time when the agreement of sale or building contract was executed.* § 20. Equitable Ovrnership — Mortgagor and Mort- gagee. — The word " owner " includes owner in equity as well as at law.f One having an equitable interest in lands, has an estate generally sufficient to be charge- able with a lienj Thus the owner of the equity of redemption may, during his possession of the mort- gaged property, be deemed the " owner " within the meaning of the statute.§ And a conveyance of the premises by the owner and builder, made before the * Knapp V. Brown, 45 N. Y., 207. t Kollins V. Cross, 45 N. Y., 768 ; Atkins v. Little, 17 Minn., 353. I McAuley v. Mildrum, 1 Daly, 396 ; Belmont v. Smith, 1 Duer, 675 ; Keller v. Denmead, 68 Pa., 449 ; Crowell v. Gilmore, 13 Cal., 54; Harsh v. Morgan, 1 Kansas, 293; Brown v. Morrison, 5 Ark., 217. § Eeid V. Bank of Tennessee, 1 Sneed (Tenn.), 263; Otley v. Haviland, 36 Miss., 19. 8 32 PARTIES TO THE LIEK EQUITABLE OWIfBESHIP — THE MORTGAGEE. claimant files his lien, but which, by an instrument executed subsequent thereto, is shown to have been intended only as a mortgage, does not prevent the lien from attaching upon the equitable interest of the ven- dor at the date of such filing ; * and where the convey- ance is made, pending the erection of a building as security for a debt, and subsequfent to the filing of the claim, such debt is discharged, and the property recon- veyed, the lien will be valid and binding upon the property as of the date of the filing of the same.f §21. Same— Estate of Mortgagee. — But the mort- gagee having a mere naked legal title without posses' sion, acquires in equity only a contingent right to and not in the property, in the nature of a chattel interest, as the security for a debt. The statute never designed such an interest to be reached by a mechanic's lien. Under ordinary circumstances, a mortgagee is not an "owner" within the statute. J For the same reason, one holding temporarily the legal title by deed, as se- curity for monies advanced for the erection of a build- ing thereon, for the benefit of the equitable owner, cannot be held liable, as owner, in a lien proceeding instituted by a sub-contractor.§ But the rule is differ- ent where the mortgagee is in possession. His chattel interest, by occupancy, ripens into a conditional fee. He is an owner of the mortgaged premises, subject, nevertheless, to the right of the mortgagor to redeem * McAuley v. Mildrum, 1 Daly, 396. t Gordon v. Torrey, 3 McCarter, Ch. (N. J.), 112. X Cox V. Broderick, 4 E. D. Smith, 731. § Id. THE OWNER 33 JOIKT AND SEVERAL INTERESTS. by payment of the mortgage. Under such circiim- stances, he is an " owner " within the statute, as to all contracts made by him in his own right,* and also as to contracts entered into by the mortgagor as agent of the mortgagee.f The mortgagor will not be liable as owner for improvements made without his consent, by the mortgagee in possession.! But he is chargeable if the mortgagee acted as his agent, and a presumptive agency is created where the work done or materials furnished were for necessary repairs.§ § 22. The Same— Parol Partition.— The Supreme Court, in the case of Otis v. Cusack,|| held that where the title to vacant lots was vested in one of two per- sons who verbally agreed upon a partition with the other, who thereupon took separate possession of the portion allotted to him, and erected a building thereon — the interest of the latter is sufficient to make him chargeable as owner, and the lots set off to him the subject of a mechanic's lien, notwithstanding the fact that the entire legal title was in his co-tenant. The rule that a parol partition between tenants in common, accom- panied by separate possession, binds the parties, and all those claiming under them, is applicable in such a case. § 23. Joint Tenants and Tenants in Common. — Joint tenants are seized per mie etper tout of all the joint property ; a tenant in common is seized per mie, it is * Ombony v. Jones, 19 N. Y., 334. t Pride V. Viles, 3 Sneed (Tenn.), 125. X Quinn v. Brittain, 1 Hoff., 353. § Id. ; Story's Eq. Jurisp., § 1337, 1238 ; Guernsey's Liea Law, Sec. 114. II 43 Barb., 646. 34 PAETIES TO THE LIEN. OF THE DOWEE ESTATE. evident, therefore, that one who owns either a joint or several interest in real estate is an " owner," so far as his separate interest is concerned, and he may create a lien thereon in favor of a mechanic ; * but a co-tenant in common, who is not a party to the arrangement and whose separate share is not benefited by it, cannot be made a party to the lien. The rights of one tenant in common to charge the entire property with a lien on account of repairs or improvements, are more difficult to fix and determine. Undoubtedly, if the work bene- fits the entire property, and it is ordered by one at the request of his co-tenants, they can all be united as owners, since as to the others he acts as an agent, and they are bound as fully as if each personally ordered the work. But how is it when the authority is a mere license or permission to make the necessary outlay ? This depends upon the nature of the work ; he may cause necessary repairs to be done at the expense of the entire property, even against the wish of the others; but as to erections or improvements, all the co-tenants must consent that the work shall be performed, or their joint or common shares will not be chargeable there- for.f § 24. Dovrer. — An inchoate right of dower, or a tenancy by curtesy initiate, will not constitute an owner- ship within the meaning of the lien act. But when dower has been assigned,^ and doubtless after the * Hillbum V. O'Barr, 19 Geo. , 591 ; Van Court v. Bushnell, 31 111., 624 ; Koach v. Chapin, 37 id., 196 ; Keller v. Denraead, 68 Penn., 449. t Taylor -y. Baldwin, 10 Barb., 636, and cases cited. X Ermul V. Kullok, 3 Kansas, 500. THE OWNER. 35 OF THE DOWER ESTATE. death of the husband, the widow may charge her separate interest by improvements or alterations ordered by her. If she cannot subject her inchoate right of dower, during the life of the husband, to a mechanic's lien, it follows a fortiori that it will not be charged by a lien for materials furnished under a contract with the husband, although it increases the value of her contingent dower interest. Nothing but a release in due form, made by the wife personally, will affect her rights in this respect.* The reason for this rule is well expressed in the case of Bishop v. Boyle,f to the effect that where there are two inconsistent statutes, the one giving the wife dower in all her husband's real estate, the other giving a mechanic a lien in the same property to the extent of the work done thereon, the difficulty must be solved by the application of general principles. A house erected on the lands of the owner is real es- tate. , The wife's dower is a favorite of the law, not resting on contract, but resulting from the marriage relation. Hers is the elder lien. But if the lien of the mechanic be first perfected, either by attaching it- self to the premises prior to marriage,^ or to the pur- chase of the property, § it takes precedence of the right of dower, since dower can only attach to the interest of the husband in the property charged there- by^ * Shaeffer u. Weed, 3 Gilman, 111., 511; GoTe v. Gather, 23 111., 634 ; Vanbrouker v. Eastern, 7 Metcalf, (Mass.), 163. t 9 Ind., 169. t Pifer V. Ward, 8 Blackford, (Ind.), 353. § Nazareth L. and B. Institute v, Lowe, 1 Ky. (B. Monroe), 258. 36 PARTIES TO THE LIEN. TETJSTEES OF AK EXPEBSS TRUST. § 25. Estate by Curtesy— Marital Rights — Al- though the husband cannot charge the wife's interest in lands with a mechanics' lien, yet he may, under his common law rights, charge his own interest therein during the life of the wife,* and his right by the curtesy after her death,f and when the common law joint life estate is enlarged to an estate by curtesy after the contract is made, the lien will extend to such increased interest of the husband. { § 26. Guardians, Trustees, Executors and others acting in a representative capacity, can only charge property with a lien when the legal title is vested in them. The person contracting for labor or materials should have a tangible personal interest in the premises to be benefited therewith. Without a guardian is specially empowered to encumber the lands of his ward, no lien can be acquired for materials furnished to him in that capacity ; § nor will the general authority by statute " to keep up and sustain the houses, grounds, and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with any other monies of the ward in his hands," justify a guar- dian in rebuilding an entire structure that has been destroyed by fire, so as to bind himself or his ward by a mechanic's lien for work performed thereon ; || nor will a special authority from the court " to erect out * Butler V. Elvers, 4 E. I., 38; McCarty v. Carter, 49 111., 53. t Pitch V. Baker, 23 Conn., 563 ; Hays v. Hogan, 5 Cal., 240. X Kirby v. Tead, 13 Met., 149. § Grant v. Vandercook, 7 Barb., 165 ; Christian v. Thompson, 2 Ohio St., 114, II Copley V. O'Neil, 57 Barb., 299. THE OWNEE. 37 THE ESTATE OF A DECEDEN'T. of the funds of his wards, a building upon their lot, of such dimensions and quality as may suit their inter- est," justify the erection of a building on credit and thereby destroy the interest of his wards* A trustee of an express trust, having no power over property save that conferred by statute or the courts, a person contracting with him must, to protect himself, inquire into the extent of such authority, for if he relies upon a contract which has no validity, even equity cannot give him relief however meritorious his claim may be.f But a guardian, executor, or trustee of an express trust, having title to premises may, for necessary repairs, or for such erections, alterations, or improvements as come within their power to construct on credit, subject the estate to a mechanic's lien ; J and the building may be bound by the lien, even though the estate is not charged thereby, and cannot in the lien proceedings be held for the amount of the indebtedness thus accru- § 27. The Estate of a Decedent. — We have in the previous Section only treated of executors as " owners," and of their power to charge the trust estate by acts of their own, after it has come into their possession. If the land is not charged with a mechanics' lien, prior to the death of the owner, it cannot be charged there- * Payne v. Stone, 7 Smedes and Marshall, 367. f Guy V. DeUprey, 16 Oal., 196; but see dicta of the court in Copley V. O'Neil, 57 Barb., 399 ; and in Miller v. Hollingsworth, 33 Iowa, 224. X Crystal v. Flannelly, 3 E. D. Smith, 583 ; Anderson v. Dillaye, 47 IST. Y., 678. § Weathersbyt). Sinclair, 43 Miss., 189. 7 38 PARTIES TO THE LIEK OF MIlfOES — THEIE KATIFICATION. after ; * but where the lien is filed during his life the property passes by devise or descent, subject to all the rights of the original parties, and may be enforced against them the same as against subsequent grantees. § 28. Personal Disabilities — Minors, etc. — A me- chanics' lien being founded upon the existence of a valid contract vrith the owner, it necessarily follows that where the owner is legally incapable of being bound by his contracts — as in the case of infancy, or lundcy, or afeme sole under the common law, no lien can be acquired.^ Under such circumstances the builder takes the responsibility of ascertaining whether he is dealing with a person competent to contract. J Although the lien law fails in a case where the guar- dian of an infant daughter, without competent author- ity erects a house on the land of an infant ward ; § or in the case of a building erected for a married woman, shielded by her common law privileges, || it does not prevent the builder from securing a remedy in a court of chancery. It is an equitable charge upon the land of which an equity court will take cognizance. § 29. The Same— Ratification. — What will amount to a ratification sufficient to charge the infant's estate, is a question that may be answered by the application of the ordinary rules governing the ratification of any contract by an infant on attaining his majority. There being no saving clause in the statute, infancy will not * Crystal v. Plannelly, 3 B. D. Smith, 583. t Johnsoa v. Parker, 3 Dutch., (N. J.), 243. X McCarty v. Carter, 49 111., 53. § Copley V. O'Neil, 57 Barb., 299. II Miller v. HoUingaworth, 33 Iowa, 324. THE OWNER. 39 MABEIED WOMEN'. suspend the time for filing or enforcing tte lien, and the ratification must be done, if at all, before the ex- piration of the time prescribed by the statute. The original contract subsequently ratified being valid, the claimant may secure a valid lien if it is perfected within the statutory limitation. § 30. The Same— Must be Voluntary. — Ratification is a question of intention, and can only be inferred from the free and voluntary acts or vrords of the adult. The mere receipt of rents does not amount to stich a ratification as would operate to create upon the building a mechanics' lien, as the law will not compel a minor to choose between the utter abandonment of his property, and the creation of a lien upon it, under a contract made during his minority ; and to say if he retains the property, he ratifies the lien. Such a construction of the law would nullify that protection it designs to bestow, for the builder might safely assume that the minor would continue in possession of his own property, and thus by the ratification create a lien which the statute had not given at the time the contract was made. The builder might thus make what contract he could with the minor, under the assurance that a lien would be worked out for him, by a necessary ratifica- tion* § 31. Married Women.— In this State, the personal disabilities of married women being removed, they may charge their separate estate with a mechanics' lien for work ordered by them, or by any other person as their agent, and by their husbands as well as a * McOartyv. Carter, 49 111., 53. 40 PARTIES TO THE LIEN. AGEirCT OF THE HUSBAND. stranger.* And even when the work is performed for the husband as owner, if it can be shown that he acted, in fact, as agent for the wife, a lien may be se- cured against her as owner, f § 32. Same— Proof of Husband's Agency.— Where the husband contracts for the performance of the work on the wife's estate, there must, in the absence of collusion, be some affirmative proof of an agency to charge her interest therein, but such agency may be proved by her acts as well as by evidence of a direct authority. Thus, proof that the wife personally su- perintended the work, or frequently visited the build- ings erected by a contract with the husband on her separate estate, and gave directions for the performance of the work, and selected the materials that entered in- to it, is sufficient to estop her from denying the agency. J The Court of Common Pleas in Hauptman v. Cat- lin,§ held, under the New York City Act of 1851, that the performance of woi'k on the wife's estate, was of itself sufficient to establish the agency where it was done with her knowledge, and actually benefited her separate property. Judge Brady delivering the opin- ion of the court, said : " Whether Mrs. Catlin had power to make a contract which would bind her as if a. feme sole, it is not necessary for the purpose of this appeal to decide. The labor performed and materials * Hauptman v. Catlin, 30 K Y., 247; Lex v. Holmes, 4 Phila., 10; Burdick v. Moon, M Iowa, 418 ; Kidd v. Wilson, 23 id., 464. t Hauptman v. Catlin, 20 N. Y., 247. X Forrester v. Preston, 2 Pitts. Pa., 298 ; Collins v. Megraw, 47 Mo., 495. § 3 E. D. Smith, 666. THE OWNER. 41 AGElfOT OF THE HUSBAND. purchased were for the benefit of her separate estate, and established a claim resting in contract which a court of equity would enforce (Dyott - v. North American Coal Co., 20 Wend., 570-573). The pro- ceeding to enforce a lien is of an equitable character and embraces such a claim." This case was affirmed in the Court of Appeals.* But this question was not directly raised or passed upon by that court. The amount of proof necessary to establish an agency between the hasband and •wife under the several statutes being still an open question, we submit the weight of authority in other States, where the rights of married women, in respect to contracts, are similar to those enjoyed un- der our laws. It may be stated as a general rule, that the agency cannot be presumed from the marital rela- tions alone, nor from the fact of the materials being used in the wife's property.f Nor will the mere ac- ceptance of rent ratify the agency where the husband erected the building on the wife's estate without her knowledge at the time. J § 33. Same — A Question of Fact for the Jury. — Where the powers and privileges of the wife are as full and free as our statutes now provide, it is a ques- tion for the jury to determine, from the evidence ad- duced on the trial, whether or not the husband, in con- tracting for work to be done upon her property, acted as her agent. A mere acquiescence is not an implica- tion of authority, nor is the performance of acts which * 20 ]Sr. Y., 247. t Miller v. Hollingsworth, 33 Iowa, 224. J McOarty v. Carter, 49 111., 53. 42 PAETIES TO THE LIEN. AGENOT OF THE HUSBAND. naturally spring from the marital relations, and whicli she would ordinarily do if the property belonged to her husband.* § 34. Same— Collusion. — The courts will not allow the wife by collusion with the husband, who is insol- vent, or in contemplation of insolvency, to divert his capital from its natural channel for the purpose of im- proving her estate to the prejudice of his creditors ; as such an act would be a voluntary gift by an insol- vent, w|iich is fraudulent and voidable under all cir- cumstances. A court of equity may, in such a case, decree a sale of the property, and divide the proceedr ings between the creditors of the husband seeking its aid, and his wife, according to their respective interests ; or lease it out, and apportion the rent until the credit- ors are paid.f But where both husband and wife spent their funds in the improvement of her separate estate while the husband was in debt, and it appeared that there was no fraud or. collusion on her part, although she knew that he expended his own monies thereon, the Judgment creditors of the husband were not permitted to enforce the lien of their several Judg- ments against the estate to the extent of the amount invested by him therein.^ Nor could a mechanics' lien be enforced under such circumstances ; as the wife cannot thus without her consent be made the trustee of a spendthrift or improvident husband, and * Hughes V. Peters,! Ooldw. (Tenn.), 69 ; Corning v. Fowler, 34 Iowa, ,584; Fetter v. Wilson, 12 Ky., 91 ; Barto's Appeal, 55 Pa. St., 386 ; Bliss v. Patten, 4"R. I., 380. t See Barto's Appeal, 55 Pa. St., 386. X Webster v. Hildreth, 33 Vt., 457. THE OWNER. 43 OF AGESTTS IN GENERAL. hold her own lands in trust for the payment of liens in the creation of which she had no part.* § 35. Agents. — The statutes give the right of lien where the labor is performed, or the materials fur- nished, in pursuance of a contract, express or implied, with the owner or his agent. It is often difficult in practice to determine what acts are sufficient to con- stitute the relation of principal and agent. We have treated in the preceding Sections of the rule in this respect applicable to husband and wife, the same prin- ciple will apply in all the family relations of the par- ties to each other. Thus, where a son contracts for the erection of a building upon his mother's property with her knowledge and consent, it is presumed in law to have been done by her authority. Although it has been held, that if the presumption is rebutted, special authority must be proved, f It may be safely asserted, as a general rule, that where the person mak- ing improvements upon the land of another, has no personal interest either in the building, or the lot upon which it stands, such act, if done with the knowl- edge, consent or approval of the owner, will, so far as the building is concerned, be deemed the act of the owner. The holder of the title to the premises should not stand by and see a contract made for work on his lands, by one who has no legal interest therein, and then set up his title to defeat the lien. He must, in such a case, give notice to the builder, or he is es- * See Miller v. HoUingsworth, "33 Iowa, 224 ; Corning v. Fow- ler, 24 id., 584 ; Barto's Appeal, 55 Pa. St., 386. ' t Baxter v. Hutchins, 49 111., 116. 44 PARTIES TO THE LIEN. PEOOF OP agent's AUTHOKITT. topped from denying tlie agency.* And where a house was being built by A, the owner, according to plans submitted by B, under the understanding that B was to purchase the house when completed ; in ac- cordance wherewith, B purchased and placed in the cellar a furnace and heater, so affixed to the building as to become a fixture ; it was held that A, by selling the property to C, became liable for the value of the improvements made by B, and that a lien might be charged against the property therefor, the liability arising from the ownership, knowledge, and consent on the principle of estoppehf § 36. Same— Several Ijiabilities. — The liability of the owner personally, and that of his interest in the property, is sometimes distinct and separable ; the re- quirements of the latter, being aided by the privity of estate, are less exacting than those of the former. Thus it was held in Mississippi, that although an administrator cannot bind the estate of the intestate for work done in the erection of a house upon the lands of the dece- dent, yet the house itself may be held. J § 37. Same— Special Authority.— It may be stated as a general rule, that where the claimant relies upon the proof that the person contracting for improvements was authorized by the owner of the fee to make the same as his agent, a special authority to that eflEect must be shown. A general agency to take care of the property, or an agency for other purposes is not suffi- * Donaldson v. Holmes, 23 111., 85. t Weber v. Weatherby, 34 Md., 656. X Weathersby v. Sinclair, 43 Miss., 189. THE OWNER 45 PKOOF or agent's authority. cient.* There is no hardship in this rule; the title, being on record, the mechanic is chargeable with notice that the agent is not the owner; and having that notice, when dealing with a person not having the title, or being clothed with the evidences of title, he should ascertain the source and extent of the author- ity of the person contracting for the performance be- fore he relies upon the same, and failing to do so, he should bear the consequences of his negligence. A party in possession of property cannot bind the owner by his contracts, unless the authority to do so has been conferred, and the mere fact of possession is not in itself proof of such authority.f § 38. Same — Superintendents, Architects, etc. — But where it is shown that the person who ordered the work, or contracted for the material, was an agent for the owner for the erection of the building into which such work or material enters, it is not necessary to show a. special authority for each particular act of such agent, so far as the liability of the building is con- cerned.J The superintendent or supervising architect is to a certain extent a special agent, and cannot bind the owner personally to such an unlimited extent as a general agent.§ The courts have therefore held it error to instruct the Jury, where there was conflict- ing testimony as to the authority of the architect, that if they should find that the claimant, at the time of the sale of materials for the building over which the architect had charge, had reason to believe, from * Baxcer v. Hutchins, 49 111., 116. f W- X Morrison v. Hancock, 40 Mo., 561. § Id. 46 PARTIES TO THE LIEN. OF LEASEHOLD I;NTBEESTS. the acts of the parties, that he was authorized to pur- chase the same, the owner was liable.* § 39. Lessee.— A tenant for life, or years, has an in- terest in lands salable under execution, he is, there- fore, as to that interest, an owner within the statute.f The interest affected by a mechanics' lien against a lessee is of a twofold nature. First, It attaches to his interest in the lease which may be enforced by the sale of the remainder of his term, whereupon the pur. chaser takes possession as assignee. Second, It charges the interest of the tenant in the building upon which the work was performed or materials furnished,J en- forceable — where, as between the landlord and tenant, the building may be removed — by a sale thereof, the purchaser acquiring the right of removal during the continuance of the term. The lien will attach to a building for work done thereon for the lessee as owner, and erected by him for his own use, by the permission of the owner, although the foundation was imbedded in the soil, but, could be removed without damaging other buildings.§ The question as to whether the lien will attach to a building erected by a tenant, as per- sonal property, is governed by the ordinary rules ap- plicable to fixtures as between landlord and tenant and need not be discussed here ; the purchaser under the lien, being subrogated to all the rights of the ten- ant for whom the erections Were made. * McDonnell v. Dodge, 10 Wis., 106. t Littlejohn v. Millirons, 7 Ind., 125; Montandon «. Deas., 14 Ala. N. S., 33 ; Barber v. Keynolds, 33 Cal., 497. X Ombony v. Jones, 19 N. Y., 234. §Id. THE OWNEE. 47 LEASEHOLD. — THE RIGHT OE EEMOVAL. § 40. Same — Right of Removal. — As the purchaser succeeds to the rights, he takes subject to the conditions, reservations, and equities governing the original par- ties.* Under this rule it was held in Ohio, in a case vi^here the lease specified that at the expiration of the lease, all the improvements that the lessee should make on the demised premises should revert to the lessor, and a building was erected by the lessee of a perma- nent nature, that a mechanic's lien for work performed on the building would only attach to the leasehold in- terest ; and that the purchaser under the lien, being re- stricted to the rights of the lessee, could acquire no specific interest in such erections beyond the original term of the lease. On the other hand, the Supreme Court of Kentucky held that a mechanics' lien could not be displaced by a condition of the lease that all improvements when erected shall become the property of the lessor ; that such a provision gives the lessor the improvements, but subject to the liens of the me- chanics, who acquired a prior interest therein. The court reasoning that the lien would be unavailing and illusory, unless it commenced with the commencement of the building, and progressed with the progress of its execution, pari passu. It is inherent in and co- extensive with the work and materials. Every part of the work is done, and every material is finished, sub- ject to the lien. But no contract can be absolutely and immediately effectual, unless the subject-matter of it be actually existing, or proximately potential as the * Oswold V. Buckholz, 13 Iowa, 506 ; Dutro v. Wilson, 4 Warden (Ohio), 101. 48 PAETIES TO THE LIEN. LEASEHOLD. — EFBECT OF SALE. natural fruit of sometting that does there exist. The utmost effectuality of such a contract as the foregoing is, that it may be conditional, but cannot attach to the contingent thing, unless or until it shall actually exist. Hence the lease on which this lien is reserved, did not attach to the buildings until they had been erected. When they were completed, they were encumbered with inherent liens, relating back to the commence- ment of the work ; and, consequently, when the lessor's right first attached to the buildings, it was attached to them as they then were, and he took them cum onere. This question has not yet been presented for adjudica- tion in this State. As a mere balance of authority, the fact that the Ohio decision was predicated upon the right of removal of a structure that was in fact a fix- ' ture, and hence, not capable in any event of being re- moved, weakens the force of the decision, although it may not detract from the reason for the ri^ile there es- tablished. § 41. Same — Rights of Lessor in Premises charged with a Iiieu. — A difference of opinion also exists as to the power of the lessor to terminate and destroy the lien, by accepting a forfeiture under the conditions of the lease. In Wisconsin,* the courts uphold such a right on the ground that the lienor, or purchaser under the lien, takes the premises subject to all the condi- tions of the lease, including, of course, the liability of forfeiture ; while the courts in Missouri, under a clause of their statute charging the lien upon the " interest of a lessee for improvements " made by him, hold that * Jessup 13. Stone, 13 Wis., 466. THE OWNER. 49 OF THE AGEEEMBNT TO LEASE. the lien, if perfected before the property revests in the lessor, hinds the property for the full term of the lease ; and that the owner mnst either extinguish the lien by a payment of the debt, or accept the purchaser under the foreclosure sale, as a tenant for the remainder of the term. Consequently, the landlord, by accepting a forfeiture of the lease after the lien has attached and placing another tenant in possession, renders himself liable to the purchaser for the full value of the lease at the time the lien was perfected. These decisions may be harmonized, to an extent, on the theory that after the purchaser comes into actual possession, he is subject to the terms of the lease, but that he is entitled to the lease at the time of the sale in the same condi- tion that it was in when first charged by the lien. § 42. Agreement to Lease.— The same rule applies in the case of an agreement to lease, as in an agree- ment of sale. When the tenant is in possession under such an agreement, his interest is chargeable. And if the , agreement is perfected by the execution of the lease after the lien is filed, or the contract for materials is made, it will relate back to the date of the execution of the original agreement to lease, and charge the entire interest of the lessee.* But this rule will not apply when the person who afterwards secured a lease, was, at the time of furnishing the materials to him, a mere occupier of the property,f without any arrange- ment for a future lease. § 43. Power of Tenant to Charge the Fee.— With- * Montandon v. Deas, 14 Ala. F. S., 33. t DaTies' Appeal, 63 Pa. St., 417. 4 50 PAETIES TO THE LIEN. HOW FAE THE TEITANT MAT CHARGE THE FEB. out there is an actual agency established between the lessor and lessee, the interest of the lessee is solely- chargeable. The mere fact that the erections are for the permanent improvemnent of the property,* or that the work was done under the supervision of the owner of the fee ; f or that the improvements are partially paid for by loans or advances made by the lessor to the lessee ; J or under a statute securing a lien against the person causing the work to be done, that the owner gave an extension of the lease, and advanced a certain sum of money, on condition that the tenant would make certain improvements and erections on the de- mised property, the tenant having contracted with the mechanics for the performance of the work ;§ or of the covenant in a lease requiring the tenant to make the alterations and repairs for which the lien is sought, || or that the owner paid some of the bills contracted by the lessee for the improvements, and gave him a cer- tain sum towards the completion of the work, ^ will " not establish such an agency as to make the estate of the lessor liable ; nor will it bind him on the principle of an implied contract direct with him, if it be proven that the work was actually performed under a con- tract with the lessee. No lien can be created on. the * Knapp V. Brown, 45 N. Y., 307. t Muldoon V. Pitt, 54 N. Y., 369. X Stuyvesant v. Browning, 33 Superior Court; (1 Jones & Spencer), 303. § Johnson v. Dewey, 36 Cal., 633. II Francis v. Sayles, 101 Mass., 435 ; Harman «. Allen, 11 Geo., 45. ' «f Trustees, etc., v. Young, 3 Duvall (Ky.), 583. THE OWNEK. 51 LIABILITY OP THE GRANTEE. interest of any person as owner of tlie premises, except sucli person shall, either himself or by his agent, enter into a contract, either express or implied, for the per- formance of .the work.* § 44. Grantee of Contracting Owner.— The claim- ant can acquire no lien against any owner save the one who has contracted for the performance of the work ; a grantee of the contracting owner cannot, therefore, be charged as owner; and his title to the premises will not be affected by the lien, without it was a charge upon the estate at the time such title was acquired which depends entirely upon the provisions of the statute creating the lien. The State Act, the Kings and Queens County Act, the Rensselaer and Onondaga County Acts, and the New York City Act of 1851, and of 1863 (as amended in 1866), provide that the claimant shall, upon filing the notice^ have a lien to the extent of the right, title, and interest of the owner at that time existing in the property. The Cities' Act, now applicable only in Buffalo, specifically states that the lien shall take effect from the filing thereof. It is plain, therefore, that in this State (except under the New York City Act of 1875), the lien charges the estate of the contracting owner uj^on the filing of the notice, and only affects the rights of subsequent pur- chasers or encumbrancers. Hence, a sale of the prem- ises in good faith, before the notice of lien is filed, prevents the acquisition of any lien,f even though the * Muldoon *. Pitt, 54 N. Y., 269 ; Knapp v. Brown, 45 N. Y., 207. t Cox V. Broderick, 4 E. D. Smith, 731; Sinclair v. Pitch, 3 Id., 677 ; Ernst v. Eeed, 49 Barb., 367 ; Noyes v. Burton, 39 Id., 631. 52 PARTIES TO THE LIEN. LIABILITIES OP GEANTEE. — FRAUDULENT TEANSEEE. purchaser had notice of tlie amount of the claim, and the conveyance was made subject to its payment.* § 45. Same— Fraudulent Transfer.— In the case of a fraudulent sale — as, for instance, when effected by collusion between the parties, for the purpose of de- frauding the rights of mechanics and material men — ^the lien may, within the statutory period, be enforced in an equitable proceeding. The court having power may set aside the sale, whereupon the parties are rein- stated to their original rights, and the lien may be en- forced against the contracting owner.f And if the court has no equity Jurisdiction, J or the claimant does not elect in the lien proceeding to try the va- lidity and hona fides of the transfer, he may obtain a judgment against the contracting owner, and sell all his right, title, and interest in the property when the lien was filed, and then, in an action of ejectment, con- test the legality of the title of the grantee. § In such a case, and whenever the title of the purchaser is to be tested, a lis pendens should be filed, as a bona fide purchaser will be preferred to the claimant who subsequently files his lien, on the principle that a fraudulent sale ceases to be voidable when the proper- ty passes into the hands of an innocent purchaser for value. (See Noyes v. Burton, svpra.) * Sinclair v. Titeh, 3 E. D. Smith, 677. t Meehan v. Williams, 36 How., 73 ; Quimby v. Sloan, 2 E. D. Smith, 594 ; Scliafer v. Eeilly, 50 N. Y., 61. X Quimby v. Sloan, supra. § Ernst V. Eeed, 49 Barb., 367; Eandolph v. Garvey, 10 Abb. Pr., 179 ; Meehan v. Williams, 36 How., 73. THE OWNER. 53 EFFECT OF A TRAIS'SFEK BY THE OWNEE. § 46. Same — An Assignment for benefit of Cred- itors vests the legal title in the assignee, who stands in the same position as a purchaser, for value, in re- spect to subsequent liens against the assignor. If the lien is not perfected by filing, prior to such an assign- ment, the right to acquire it is lost.* And it matters not if the assignment is subsequently recorded, pro- vided it was executed before the lien was filed, f § 47. Under the New York City Act of 1875.— The Westchester Act of 1852 [see Part III.] provided that any person performing work upon a building un- der a contract with the owner, " shall have a lien there- on to the extent of the right, title, and interest at the time existing of such owners In that act, and in the New York City Act of 1875, the clause " upon the filing of the notice " is omitted. The effect of this omission, if uncontrolled by other portions of the stat- ute, is to charge the lien upon the land from the time of the performance of the work, and does not restrict its origin to the filing of the notice. In the case of Blauvelt v. Woodworth [31 N. Y., 285], which arose under the Westchester Act of 1852, the referee found that the claimant contracted with the owner of prop- erty to build the house in question. Subsequently, and after the building was erected according to con- tract, but before the lien was perfected by the service of specifications, the contracting owner sold the prem- ises to a third party, who purchased the same for * Quimby v. Sloan, 2 B. D. Smitli, 594 ; Noyes v. Barton, 39 Barb., 631. t Id. ; Gates v. Haley, 1 Daly, 338. 54 PARTIES TO THE. LIEN. EFFECT OF A TRANSFEK BY THE OWNEB. value and in good faith. The question at issue was whether the grantee took the property subject to the lien for the amount unpaid on the contract. Judge Porter, in delivering the opinion of the Court of Ap- peals, said : " By the provisions of the act in question, the mechanic who furnishes materials or labor in the con- struction of a building, in the County of Westchester, in conformity with the contract with the owner, has a specific statutory lien, to a limited extent, on the inter- est of the existing owner, and this may be enforced by judgment as in a personal action. He may lose this lien by omitting to comply with the conditions pre- scribed by the act ; but in the case at bar, no fact is found by the referee inconsistent with the claimant's right. It is insisted by the appellant, that the lien did not attach until the specification was served on the 24th of June, and that it did not attach then as against the defendant, because he had previously con- veyed the property to one Bell, after the completion of the work. In this view we cannot concur. The lien took effect as tJie materials were furnished, and the work was done. * * * The services were performed while the desfendant was owner, and he could not re- lieve the property from the lien, nor absolve himself from his contingent liability by a subsequent convey- ance to a third party." This decision, so far as it re- lates to the liability of the property in the hands of an innocent purchaser, I consider as fully applicable to the present statute in New York City ; and that there the lien commences at the commencement of the work, and continues till the expiration of the time to file the required notice with the County Clerk, which, if prop- THE OWNER 55 EITECT OF A TEANSFEE BX THE OWHEE. erly executed and filed, further continues it until dis- charged by some of the methods prescribed by the statute. Any one, therefore, who takes title to the premises after the work is commenced, takes it subject to the lien created by virtue of the work. ELEMENTS OF A LIEN. CHAPTEE III. THE CONTEAOT, § 48. Can a Lien be created in the absence of a Con- tract -with the Owner ? — Guernsey, in his learned Commentaries on the Law of Liens, in relation to Sec- tion one of the Kings and Queens Act, says : " A party who is permitted by the owner to do work, or furnish materials, can acquire a lien against such owner's interest. This is something more than an im- plied contract, and is more effectual to cover all cases than the law for New York City, particularly as the latter law has been construed by the courts. Under this act, a sub-contractor could recover in a case like Walker v. Paine (2 E. D. Smith, 662), and Ran- dolph V. Garvey (10 Abb., 179), and should also reach the lessor's interest, where he permits the lessee to make repairs or improvements that are a benefit to the lessor, as well as in cases where there is an executory contract to lease, or advance money, or sell the prop- erty, contingent upon the alteration or erection of buildings thereon." The same reasoning woxild apply to the State Act, which provides for a lien, when the work is done by the consent of the owner, and in a less degree to the New York City Act of 1875, THE CONTRACT. 57 OF THE NECESSITY OF A CONTEACT WITH THE OWlfEE. where tlie word " instance " is used ; it becomes, there- fore, an important question whether a lien can be cre- ated in the absence of a contract express or implied. It may be stated as almost self-evident that the lien must have a debt to attach itself to, otherwise it would be a security for nothing, and ipso facto void. So the owner must be a debtor, and the claimant a creditor, or the lien will not be enforceable at law, since the owner cannot be made, by virtue of the lien, to pay more than he owes* or the claimant permitted to re- ceive more than is due him. The lien law does not, and cannot, create a new and distinct liability ; it sim- ply aids in the enforcement of valid, existing claims, by creating a new security. Now, if the owner is a debtor, he m.\\st first have been a contractor ; for in the Civil Law, one is said to be a debtor, who owes repa- ration or damages for the non-performance of his con- tract, f And the same consequence must follow if the plaintiff is a creditor, since " a creditor," says Bou- vier, "is one who has a right to require of another the fulfillment of a contract or obligation." % So the lien, if a security for a debt, must necessarily be founded on contract, since "the legal acceptation of debt," says Blackstone, "is a sum of money, due by certain and express agreement, as by' a bond for a determinate sum, a bill, or note ; a special bargain, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it." Our pri- mary proposition may, therefore, be thus extended : * Schneider v. Holbriu, 41 Howard, 333. f 1 Pothier on Obligations, 159. t 1 Bouvier's Law Dictionary, 383 . 58 ELEMENTS OF A LIEN. OF THE NECESSITY OF A COKTBACT WITH THE OWNBE. A mecliaiiics' lien is only enforceable when there is an existing indebtedness ; debt is always founded on con- tract ; therefore, every lien must be based upon a pre- existing contract express or implied. § 49. Same— Under the Act of 1863.— But our posi- tion is not without precedent, the Court of Commis- sion of Appeals passed upon this very question, so far as it is applicable to the Act of 1863, in the case of Muldoon V. Pitt.* The facts were these : The owners of certain premises in the City of New York leased them for a dwelling and bathing establishment, the lease containing a covenant that no alterations should • be made, with certain specified exceptions, without the written consent of the lessors. PlaintiflE, a builder, contracted with the lessee to make certain alterations, and to erect a building thereon. The alterations did not come within the exceptions contained in the lease. The lessors not having given their consent in writing to the changes, notified the plaintiflE that the work must be done in accordance with their wishes, and, at the request of the tenant, gave directions in reference thereto, and exercised supervision over the entire work. The plaintiff filed a lien naming both the lessor and lessee as owners. The court held that the lessor was not liable as owner, for the reason that the contract was made with the tenants, and the lessors' actions did not constitute them parties to the contract. At the request of the tenant, the lessors supervised the work for the purpose of protecting their own rights merely, they not having consented to the alterations. * 54 N. Y., 369. THE CONTRACT. 59 OF THE NECESSITY OF A CONTRACT WITH THE OWNEB. It will be noted that this case came within the pre- cise wording of Section one of the New York City Act of 1863, upon which the lien was predicated. This Section provides that " any person or persons who shall in pursuance of, or in conformity with, the terms of any contract with, or employment by the owner, or ly or in accordance with the directions of the owner or his agent, perform any labor or furnish any materials," etc., shall have a lien. In this case, the work was done " in accordance with the directions of the owners," but the court refused to enforce the lien because such directions did not imply a contract on their part to pay for the work and material^ used on the premises. "The settled construction of this Section," says Com- missioner Johnson, " is that no lien can be created on the interest of any person as owner of the premises, except such person shall either himself, or by his agent, enter into a contract for doing the work, either express or implied ; all this is implied in the expres- sions describing the conditions which are necessary to a lien. To that end the labor or materials must be furnished in conformity with a contract with, or em- ployment by, or by the directions of the owner or his agent. Together, these phrases mean contracts express or implied, and no one is owner, in the sense of this statute, who is not contractor also for having the work or materials expended or performed upon his land." § 50. Same — Application to Existing Statutes — Act of 1875. — The theory of this decision, to wit, that the language of the 1st Section is to be construed and governed by the intent of the Legislature, as shown from a reading of the entire act, will serve to extend 60 ELEMENTS OF A LIEK or THE NECESSITY OE A COJTTEACT WITH THE OWKBE. the same principle to every act in this State. Section one of tlie New York City Act of 1875, has omitted the word contract, and provides for the lien whenever the work is done " at the instance of the owner or his agent," but it is plain that a contract by the owner is contemplated, as Section five provides that the original contractor must file his claim " within sixty days after the completion of his contract f" and the notice must contain a statement of the terms, time given, and con- ditions of his contract, and concludes with the following direction : " ^ his contract, or any part thereof, is in wi'iting, a copy of such writing must be filed with and made part of his claim." And Section fourteen says that " All persons entitled to liens on the structure or improvement, except those who contracted with the owner thereof, shall be deemed sub-contractors." § 51. Same — Kings and Queens Act. — So under the act for Kings and Queens Counties,* one who performs labor, or furnishes materials for a building by virtue of a contract with the owner, " or any person permitted by the owner of such lands, to build, alter, repair, or improve, as aforesaid," shall haTe a lien. Here a simple permission is all that is requisite under the first Sec- tion, but that the permission must be under circum- stances that will raise a presumption of an absolute implied contract is evident from other provisions of this statute. The same Section provides that the owner shall not be obliged to pay on account of the building, " in consideration of all the liens authorized by this act to be created, any greater sum or amownt than the * See Part III., Statutes. THE CONTRACT. 61 OF THE IfECESSITT OF A CONTRACT WITH THE OWNER. prwe stipulated and agreed to he paidi tlierefor in and by such contract^ If, tlien, lie has not " stipulated and agreed " to pay for tlie work, the lien utterly fails, as he is oWiged to pay nothing on account of such building. § 52. Same— The "State," "Buffalo," and "Ononda- ga" Acts.— The State Act, as amended in 1875,* gives the mechanic a lien whenever the work is done upon a building " with the consent of the owner." The lan- guage of this entire act, as remodeled by the amend- ment of 1873,f is extremely liberal in its provisions in favor of mechanics and material-men. But under it the estate can only be charged to the extent of the owner's indebtedness to the original contractor, and such indebtedness must be founded upon a contract either express or implied. The same may be said of the Buffalo Act, which provides that the work shall be done " for the owner." J The Onondaga Act ex- pressly provides that the work shall be performed in pursuance with a contract with the owner. It is evi- dent, therefore, not only from the necessities of the case, but from the general scope and meaning of the different statutes, that every lien must be founded upon a valid existing contract express or implied. § 53. Implied Contracts. — In the case of "Walker v. Paine,§ the Court of Common Pleas held that a mere implied agreement, such as may be inferred from the owner's suffering improvements to be erected on his premises, that he will pay what the same are reason- * See Part III., " Statutes." I See « « « tSee « « « § 2 E. D. Smith, 662. 62 ELEMENTS OP A LIEN. ^—. - ■ I IMPLIED CONTKAOTS. ably worth, is not sucli a contract as can form the basis of a mechanic's lien in behalf of a sub-contrac- tor. This decision, taken in connection with the fact that under the several acts the owner cannot be held liable to an extent exceeding the amount he has stipulated to pay on account of the building or im- provements, would seem to restrict the right of lien to cases where the owner has entered into an express agreement, under which the work was performed, or material furnished for which the lien is sought. This theory is favored by many decisions of other State Courts ; thus, in Massachusetts, under the law extend- ing the right of lien to " any person who shall actually perform any labor, * * * by virtue of any contract with the owner, or other person who has contracted with the owner," the Supreme Court * held that to entitle a workman to a lien, an express contract must have been entered into with the owner; and that a claim arising from an implied contract was not sufficient, especially where the claimant is a sub-contractor ; as such a lien is of a novel and extraordinary character in rendering the owners of real estate liable to have their property sold, not only to enforce the performance of their own contracts, but also to secure the fulfilment of contracts to which they are neither party nor privy. Such statutes should be construed strictly, not only because they are in derogation of common law, but also in order to pre- vent the hardship and injustice which might result from too great latitude in their interpretation. Besides, it would lead to great uncertainty and confusion in * Parker v. Anthony, 4 Gray (Mass.), 389. THE CONTEACT. 63 EEQITISITES OF THE CONTKACT. titles to real estate, and to collusion and fraud in the settlement of accounts, if liens were allowed to accrue upon implied contracts which are necessarily unliqui- dated, and which in themselves contain no certain ele- ments by which their amount can be ascertained and adjusted. But by making an express contract the basis of a lien, the owner of real estate can always readily ascertain the extent of his own liability ; and a contractor, in case of his own insolvency, would have no opportunity of increasing the claim for services by collusion with the laborer or mechanic, when it was to become a charge on the estate of his employer, be- yond the amount he was to be personally liable in case he had satisfied the claim. § 54. Same— Must Ibe Explicit— Day's Work.— So under a similar statute in the same State, the court held that even an express contract to build a house at a certain price per day for the contractor's own ser- vices, with power to employ such workmen as he shall deem necessary, and at such prices as he shall consider fair and reasonable, is not such a certain and definite contract as that contemplated by the lien act,* and in both Massachusetts f and Mississippi J it has been held that a mere hiring by day's work is too indefinite to give a lien. The statute provided, in the former State, that any person to whom money shall be due for labor ex- pended in the erection or repair of a building, shall have a lien to an amount "not exceeding the amount of his contract." This plainly shows, says the court, * kSanderson v. Taft, 6 Gray (Mass.), 533. f Wilder v. French, 9 « " 393. X Myers v. Buchanan, 46 Miss., 420. 64 ELEMENTS OF A LIEN. REQUISITES OF THE CONTEACT. that the contract under which a lien may arise, must be of such character and upon such terms and stipula- tions between the parties, that the amount which may- be earned under it may in some way be ascertained and determined with certainty. The contract must be in express terms and for the accomplishment of a defi- nite purpose, and so certain in amount that the owner, the contractor, or any party subsequently acquiring an interest in the property, may know at any time the exact amount of the encumbrance upon the land. It would undoubtedly be sufficient, if it provided for any designated object, such, for instance, as the erection of a dwelling-house, the repair of the whole or of any definite part of a building, to be completed within a specified time, and at a fixed or stipulated price, or for a sum to be ascertained by computation allowing for labor actually expended at an agreed rate of compen- sation for each day's labor ; but a contract for mere day's work is not of this character.* Although the question has not specifically arisen in this State, there is no doubt in my mind that a mere contract for work to be performed generally, whether the payment is by day's work or by the month, will not give the workman a lien, as he performs his services entirely on the per- sonal credit of his employer, and not of the building whereon he may be employed. But where one con- tracts for the erection of a specific building, it matters not how he is to be paid, provided the amount due can be arrived at by computation, and if by day's work, but without naming a time for the payment, his lien * Wilder v. French, 9 Gray (Mass.), 393. THE CONTRACT. 65 REQUISITES OF THE CONTKACT. will be valid upon the completion of the building, although it cannot be previously enforced on account of the contract being entire and the payment indivisi- ble.* § 55. Same — Contract must Precede the Perform- ance — Implied Assumpsit.— The Supreme Court, in the case of Hatch v. Coleman,f held under the Westchester Act of 1852, which provides for a lien in favor of " any person who by virtue of any contract with the owner thereof, or his agent, or a person who in pursuance of an agreement with such contractor shall, in 'conformity with the terms of such contract, furnish materials in building any house," that such materials must be fur- nished under a pre-existing express contract, and that it did not extend to the case of lumber delivered under an implied assumpsit merely, the court remarking that, where the evidence shows that the owner was building a house, and the material-man delivered to him a cer- tain quantity of lumber which was used by him in the erection of his building, the only liability of the owner is one of implied assumpsit. It will not do to imply a previously existing contract from the fact that the materials are furnished. It is true that the law will raise an assumpsit to pay ; but it will not go so far as to raise the presumption that they were furnished in pursuance of a previously existing contract to furnish them.} This distinction between implied asssumpsit and implied contract is exceedingly fine, but in the sense here given, it actually exists. It is in effect a * Cunningham v. Jones, 3 E. D. Smith, 650; and see Neville V. Frost, 2 Id., 62; White v. Hewitt, 1 Id., 95. t 29 Barb., 301. t Id. 5 66 ELEMENTS OF A LIEN. REQUISITES OF THE CONTEACT. distinction of time. Thus a liability arising solely from a promise, either express or implied, to pay for work previously rendered, without any request or agreement on the part of the promiser,is simply evidence of a contract to pay^ not to perform. It attaches from the force of the promise at the time when it is made, and cannot be construed as a contract for the future performance of work, such as is required by Section one of the Onondaga Act, which provides thai the work shall be done in pursuance with a contract ex- press or implied. The contract, under all of our statutes, may be implied as well as expressed,* but the acts or circumstances forming the basis of such impli- cation, must exist before the work or labor is performed. In other words, the labor or materials must be fur- nished either under an express contract with the owner, or under circumstances that will reasonably im- ply a pre-existing contract, or at the least such a direction on the part of the owner as will culminate into a valid contract, by the mere performance of the labor or furnishing of the materials. The "permis- sion " or " consent " of the owner is sufficient, provided the circumstances are such that it is in effect a direc- tion ; and provided, also, that the work is performed in pursuance therewith, and not by virtue of a contract with the lessee of the owner, or some other per- son having a personal interest in the property, or to whom the mechanic looked personally for his remunera- tion. What will amount to an implied contract, may generally be determined by applying the principles * Spencer v. Barnett, 35 N. Y., 94 ; Knapp v. Brown, 11 Abb. N. S., 118 ; Meehan v. "Williams, 36 How., '73. THE CONTRACT. 67 REQUISITES OF THE CONTRACT. governing the old common law declaration of assump- sit. No lien can be enforced without the person stand- ing in the position of original contractor, can recover a judgment against the owner on an express or implied assumpsit. § 65 a. Payment in Kind or by Specific Property. — The statute provides that every person performing labor upon a building at the instance or under a con- tract with the owner, shall be entitled to a lien. Al- though the contract must be specific, that is for the particular work or materials for which the lien is sought, and which comes within the meaning of the statute, yet the mode of payment is not specified in the act ; therefore, any payment agreed upon between the parties may be enforced by the lien. Thus, where the mechanic was to be paid for his work by the convey- ance to him of certain lots,* or a house,f or partly in money, and the balance in goodsj or material,§ or by the services of the owner, a lien may be secured and enforced under the statute. || So where two mechanics entered into an agreement whereby they were to assist each other on their respective buildings, and when done, to balance the accounts and pay the difference, if any, in cash ; the court held that a contract existed within the meaning of the statute, and that the one in arrear, on refusal to strike the balance and pay his de- ficiency, is chargeable as owner, and a lien may be en- * Protection Ins. Co. v. Hall, 15 B. Mon. (Ky.), 411. f Haviland v. Pratt, 1 Phila., 364. I Campbell v. Scaife, 1 Id., 187. § Hinchman v. Lybrand, 14 S. & E. (Pa.), 33. II Keiley v. Ward, 4 Iowa, 31. 68 ELEMENTS OF A LIEN. REQUISITES OE THE CONTEACT. forced against his property for the amount due.* "Whenever the work is to be paid for by some act on the part of the owner, such as the execution of a deed to property or the delivery of chattels, or by the per- formance of other work on his part, the lien will act as a security for the performance of such act,f and the claimant may, after the completion on his part, demand the performance of the act by the other called for by the contract, and on refusal enforce the lien for the money value thereof, if it js of a definite and certain value, or he may waive the contract and recover under a quantum nieruit.X An obligation to deliver property gives to the party entitled to receive it a claim, the na- ture and amount of which may be stated, and if the obligation be not complied with, an action for money to the extent of the value of the property to be re- ceived may be sustained ; § but no money claim can accrue until there is a default in the original contract, || nor until a demand and refusal. § 55 b. Same— The New York City Act of 1875 [§ 16], specifically provides that "Whenever by the terms of his contract, the owner has stipulated for the delivery of bills, notes, or any other species of prop- erty in lieu of money, the judgment must direct that such substitute be delivered or deposited as the court may direct, and the property affected by the liens can only be directed to be sold in the default of the owner * McCall v. Eaetwick, 2 Miles, 45. f Protection Ins. Co. v. Hall, 15 B. Mon. (Ky.), 411. X See Reiley v. Ward, 4 Iowa, 31. § See Ward v. Howard, 12 Ohio St., 158. II Monroe v. Bishop, 39 Geo. THE COI^TRACT. 69 CHABACTER OS THE CONTRACT. to deliver sucli substitutes within sucli terms as may- be directed." The amount of the lien in such a case would doubtless be determined by the value of the prop- erty to be taken in payment, since the courts will carry their intentions of the parties so far as the same can be done under the circumstances. § 66. Character of the Contract— Legality. — Legal- ity and certainty are two of the most essential elements in a lien-contract. The work must not only be done in pursuance of a contract with the owner, but that contract must be capable of enforcement between the original parties. Illegality and fraud not only nullify contracts but all attaching securities. Thus where the building is being erected for illegal purposes, to the knowledge of the contractor, or the contract is obtained through fraud, no lien can be acquired thereon or there- under.* Nor can a valid lien be predicated upon a contract void under the statute of frauds,f or which cannot be enforced in a personal action on account of the statute of limitations.! § 57. Same— Certainty. — A legal contract for the performance of labor, or the furnishing of materials, is not sufficient under the statute, without it specifies or implies the application thereof. A structure or im- provement within the terms of the statute, must have been in the minds of the parties at the time of the execution of the contract, or during the entire period of the performance,! and the goods must be sold foi * Allen V. Ogden, 1 Wash. U. S. C. C, 174. f Loonie v. Hogan, 5 Selden, 435. t Yeates v. Weeden, 6 Bush. (Ky.), 438. § Cotes V. Shorey, 8 Iowa, 416. 70 ELEMENTS OF A LIEN. CHAEACT3K0F THE CONTilACT. that specific purpose,* and for tlie specific house on which the lien is sought.f But it is not necessary that the precise locality of the building should be des- ignated by the contract,{ or known to the contractor at the time,§ and if under a contract materials are fur- nished for a block of buildings, a lien may be enforced upon any of them.|| § 58. Same— Proof. — But the absence in the contract of the designation or purpose of the work or materials, or the mere fact that they were charged in the books of the material-man to the contractor or owner gener- ally,^ will not debar the enforcement of a lien, pro- vided it is affirmatively proven that credit was actually given to the building in question. A tacit understand- ing is as good as an express one, and the fact that the goods were actually furnished and used in a building, creates the presumption that they were contracted for that purpose.** As a general rule it may be stated that the stipulations of a building contract bind the parties * Ohoteau v. Thompson, 2 Ohio, 114 ; Hills v. Elliot, 16 S. & R., 56; Hill V. Bishop, 25 111., 349; Esslinger «. Huebner, 23 Wis., 632; Chapin v. Persse, 30 Oonn., 461 ; Hausev. Carrqll, 37 Mo., 378. f Hills V. Elliot, supra j Buckhart v.. Reisig, 24 111., 529 ; Horton v. Carlisle, 2 Disney (Ohio), 184; Houghton v. Blake, 5 Cal., 240. J Ohoteau v. Thompson, 2 Ohio, 114. § Atkins V. Little, 17 Minn., 353. II Croskey v. Coryell, 2 Wharton (Pa.), 223 ; McAuley v. Mild- rum, 1 Daly, 396. 1 Presbyterian Church v. Allison, 10 Pa., 413. ** Power V. McCord, 36 111., 214; Martin v. Eversal, Id., 222. THE CONTRACT. Tl STIPULATIONS — AS TO DAMAGES. and all persons claiming under them. Thus the claim- ant who is a sub-contractor, is bound by a stipulation in the original contract to the effect that the builder shall forfeit a certain sum per day for every day that the building remains unfinished after the specified time for its completion has expired.* And so the owner will be estopped from claiming any greater rate or deduction than that named in the contract. It is an absolute case of liquidated damages.f So where the contract stipulates for the performance of the work to the satisfaction of the superintending architect, the contractor must in a lien proceeding against the owner, produce either the architect's certificate or show that it is fraudulently withheld. J And the mere fact that the owner did not require or receive such certificates for the intermediate payments, does not amount to a waiver of the final certificate upon the completion of the work ; § but if the architect unreasonably and in bad faith refuses the certificate, the builder, under such a contract, may recover upon furnishing other proof of performance.il § 59. Same — Effect of Covenants against Liens. — "Where the builder stipulates that he will not file a lien upon the structure to be erected, he will be deemed to have waived his statutory rights, and will be * O'Donnell v. Rosenborg, 14 Abb. IST. S., 59. t O'Donnell v. Rosenborg, Id ; Gillen v. Hubbard, 2 Hilt., 303. I Barton v. Herman, 11 Abb. N. S., 378. §Id. II Thomas v. Floury, 26 N, Y., 26, 72 ELEMENTS OP A LIEN. STIPULATION — AGAIKST LIENS. estopped from enforcing a lien.* But the builder will not be bound without the intention to waive his rights are very clear and explicit. Thus in Pennsylvania the Supreme Court held that a stipulation in a contract on the part of the contractor that no other person or sub-contractor should file liens upon the building, does not prohibit the contractor from filing a lien to secure his own rights ; f and although a stipulation in the building contract, by the contractor, to indemnify the owner against all liens on the property may estop him from enforcing a lien, it will not cut off the rights of sub-contractors, for the owner has specially provided for the effect of their liens.J In the case of Hartman V. Barry,§ decided in the Supreme Court of Missouri, in 1875, it was held that a sub-contractor who in con- nection with the contractor was a surety for the owner as principal in a bond given to a purchaser under a trust deed providing for the delivery of the building when completed " free from all mechanics' liens, and other indebtedness of whatever character growing out of the completion of the same, or in any way apper- taining thereto," was not thereby estopped from sub- sequently, and before the completion of the building, filing a lien thereon. Judge Adams, in delivering the opinion of the court, said ; "The object was that the deed of trust might not be swept away by liens filed under the mechanics' lien law. There is no allegation in the » Mulrey v. Barrow, 11 Allen (Mass.), 153 ; Poillon v. The Mayor, etc., 47 N. Y., 666; and see Chapter on Waiver, _pos^. t Young V. Lyman, 9 Pa., 449. % Whittier v. Wilbur, 48 Cal., 175 (1874). § 56 Mo., 487. THE CONTRACT. 73 OF THE PEEFOKMAKCB. answer that Bates (the purchaser) was injured, or if in- jured, to what extent. The bond itself would not operate as a bar or estoppel against filing liens. If Bates lost her money, or any part thereof, by means of such liens being filed, the damage so sustained might have been set up as a counter-claim." § 60. Performance of the Contract.— It is evident, since the owner cannot in a lien proceeding in favor of either a contractor or sub-contractor be made to pay more than he owes under his contract, or on ac- count of the work, that performance is a condition precedent to the enforcement of a lien, except where the contractor is excused from performance by some act of the owner. The decisions upon this point are multifarious, but always as between the contractor and owner, and generally as between sub-contractor and owner, the right of enforcement depends upon the right of recovery by the contractor in an ordinary action of assumpsit. § 61. Same — Abandonment. — Where the contractor wilfully abandons a contract,* or is prevented by in- solvency or otherwise from completing it ; f and when- ever there is no money due to the contractor, under the contract,! a lien cannot be enforced by any one against the owner.§ * Malbon v. Birney, 11 Wis., 107 ; Linn v. O'Hara, 2 E. D. Smith, 560; Thompson v. Yates, 28 How., 142. f Henderson v. Sturgis, 1 Daly, 336. I Schneider v. Hobein, 41 How., 333. § Kandolph v. Garvey, 10 Abb., 179; S. C, 19 How,, 505; Tin- ker V. Geraghty, 1 E. J). Smith, 687 ; Hauptman v. Halsey, Id., 668; Sullivan v. Brewster, Id., 681; Dixon v. La Forge, Id., 722; Kinney v. Sherman, 28 111., 520. ^4 ELEMENTS OF A LIEN. OF THE PEEFOEMANOE. § 62. Same— The Sub-Contractor.— Although the re- covery by a sub-contractor is limited to the amount due to the contractor by the terms of the building con- tract,* yet the equities of mechanics or material-men are superior to those of the owner, and the court will award to them the amount equitably due the con- tractor at the time of his abandonment of the original contract, whenever it can be done without conflicting with well-settled principles of law. Thus where the contractor became insolvent and made an assignment for the benefit of creditors, at a time when there were no payments upon the building contract due him, and a sub-contractor, having filed a lien, completed the building for the assignee, the owner reserving from his payments the amount of the lien; the court held that upon the completion of the contract, the sum so detained should be paid to the lienor. f So where a builder is employed for the construction of a house, without any special agreement as to the manner of performance, the payments to be made as the work progressed ; or where the original contract is so de- viated from by the directions of the owner as to amount to a general employment upon the buUding in question, and entitle the contractor to recover under a quantum meruit, sub-contractors may enforce their liens for the amount of work done or materials furnished by them under an implied obligation on the part of the owner to pay what they were reasonably worth.| * Nolan V. Gardner, 4 E. D. S., ?37 ; Grogan v. Mayor, etc., of New York, 2 Id., 693 ; Schneider v. Holbein, 41 How., 332. f Henderson v. Sturgis, 1 Daly, 336. X Smith V. Ooe, 2 Hilton, 365 ; Schwartz v. Saunders, 46 HI., 18. THE CONTRACT. 75 OF THE PEKFORMANCE. § 63. Same — Substantial Performance. — This bal- ance of equities in favor of sub-contractors, often shields them from the necessity of a literal perform- ance of the original contract. Under ordinary circum- stances, the contractor must fully complete his work before he can demand his pay for its completion ; but the courts have been led by the hardship of individual cases, in deciding upon building contracts, to allow to a sub-contractor a recovery to the extent of the work completed, where there has been a substantial com- pliance in important particulars if the facts will war- rant the presumption that the work has been ac- cepted by the owner.* Thus a mere delay of blinds for two months, without the special fault of the con- tractor, would not prevent the parties from considering the contract complete,f and, as between the builder and other creditors, if the owner waives a full per- formance in minute particulars, a valid lien may be created thereon in the absence of actual fraud or col- lusion.! '^^^ ^^-^^ seems to be drawn more strictly in regard to the mode than to the time of performance ; the owner having the right to insist that the work shall be done in the precise manner agreed upon.§ § 64. Same — Deviation by the Contractor. — The con- tractor is held to a strict as well as a complete per- formance. Any variance between the contract and the * Henderson v. Sturgis, 1 Daly, 336; Lntz v. Ey, 3 Abb., 475; but see to the contrary on general principles, Smith v. Brady, 17 ISr. Y., 173. tid. I Stewart v. McQuaide, 48 Penn., 191. § Smith V. Coe, 2 Hilton, 365, and see the following Section. 76 ELEMENTS OF A LIEN. OF THE PEBFORMAlirCE. performance is fatal, without it was ordered or ap- proved by the owner. All the material specifications of the contract must be obeyed, both as to the time and the manner of performance, or the contractor cannot re- cover either under the contract Or on a quantum mer- uit.* A performance substantially in the mode pre- scribed is insufficient, even though the owner should sub- sequently occupy the building.f This rule is founded on the policy of securing the full and faithful perform- ance of all contracts, which clearly express what is to be done, for the reason that any laxity would aflford encouragement to parties to execute their contracts as their interest or caprice dictated. The consideration that it may, in individual cases, inflict upon the default- ing contractor a very heavy punishment, by giving the owner what he has done without paying for it, is not so important as its healthy and beneficial effect, as a general rule. The owner is supposed to know, and contract for, just the style and character of a house that he wants, and if a single deviation is allowed, he may be compelled to pay for anything, how far soever it may differ from what the contract stipulated. J "Every one," says Judge Comstock in the case of Smith V. Brady,§ " has a right to build his house, his cottage, or store, after such model and in such style as shall best accord with his fancy. The specifications of the contract become the law between the parties, until voluntarily changed. If the owner prefers a plain, sim- * Smith v. Ooe, supra. t Smith V. Brady, 17 N. Y., 173. J See Ellis v. Hamlin, 3 Taunton, 52. § 17 N. Y., 173-187. THE CONTRACT. 77 OF THE PERFOEMANCE. pie, Doric column, and lias so provided in the agree- ment, the contractor has no right to put in its place the most costly and elegant Corinthian. If the owner, having regard to strength and durability, has con- tracted for walls of specified materials, to be laid in a particular manner, or for a given number of joists and beams, the builder has no right to substitute his own judgment or that of others. Having departed from the agreenient, if performance has not been waived by the other party, the law will not allow him to allege that he has made as good a building as the one he has engaged to erect. He -can demand payment only upon and according to the terms of his contract, and if the conditions, on which payment is due, have not been performed, the right to demand does not exist." § 65. When Performance is Excused— Waiver— By the Act or Consent of Owner. — There are circumstances under which performance by the contractor is excused, and he may maintain a lien under a quantum meruit for the work done, or under the contract for the pro- portional amount of performance rendered. The claim- ant will be entitled to the benefit of a lien if the failure was caused either by the consent or fault of the owner.* The owner will be deemed to have waived the element of time in the building contract, where he has delayed the performance by changing, the plans or othervsdse,t or by an extension of time. J It is held in Illinois that sufEering the contractor to com- * Foley V. Gough, 4 E. D. Smith, 734 ; Dennistoun u. McAl- lister, Id., 724. f Montandon v. Deas, 14 Ala., 33. X Eockwood V. Woolcott, 3 Allen, 458, 78 ELEMENTS OF A LIEN. OF THE PEEFOEMAN^CB. plete the contract after the specified time, and accept- ing the same when finished ; * and in Maryland, per- mitting the sub-contractor under such circumstances to complete it,f amounts to a waiver of the performance within the time specified in the original contract. The same rule will apply, it seems, where the owner him- self completes the building, provided it is simply a failure of the time stipulation in the contract, and not a wilful abandonment by the contractor.^ ^66. Same — Effect of a Completion by the Owner under the Contract. — Where the contract is silent as to the effect of a default on the part of the contractor, the owner, by completing the building after there has been a practical abandonment on the part of the con- tractor, does not waive his right to consider the original contract as entirely null and void ; since he cannot be put to the election, either to waive the breach by the contractor, or surrender all of his interest in the build- ing ; § but where the owner completes the building under a special clause in the contract, empowering him to complete it at the cost of the contractor, he shall be deemed to have acted for the contractor, and sub- contractors will be entitled to the amount due under the contract after deducting the cost of its com- pletion. II § 67. Same— Default by the Owner. — If there is a * JSTibbe v. Brauhn, 34 111., 268. t Jordan v. Pumphrey, 36 Md., 361. I Jorda V. Gobet, 5 La. An., 431. § See Smith v. Brady, 17 N. Y., 173; Smith v. Coe, 3 Hilton, 365. II Gillen v. Hubbard, 3 Hilton, 303 ; Foley v. Gougli, 4 E. D. Smith, 734. THE CONTEACT. 79 OP THE owner's default. breacli of contract on the part of the owner, he cannot set up a subsequent default of the contractor as a defense in a lien proceeding by such contractor, or any one acting under him.* There seems, however, to be a distinction between a failure to pay and a failure to perform, inasmuch as the latter always, and the former generally, debars the owner from pleading the non- performance by the contractor. In Illinois the courts hold that the mere failure to pay the consideration for the work as it progresses, according to the terms of the agreement, is not such an act or omission on the part' of the owner as to justify the contractor in not completing the contract.f I cannot possibly perceive how the failure to perform the contract by the non- payment of money, is any less default than by the non-delivery of materials, since the builder depends upon both alike in the performance of the work on his part. If a distinction exists, it should place the money performance as of the most importance, since the builder would then be in a position to supply the materials himself, contracted by the owner. I think our courts, when the qxiestion comes before them, will not allow the owner to defeat a lien by pleading an abandonment caused by his own refusal to furnish the funds called for by the contract. § 68. Same— Effect of Fraud.— The owner cannot take advantage of the terms of a contract entered into through fraud on his part, to defeat the contractor's * Bushfield v. Wheeler, 14 Allen (Mass.), 139. t Palm v.O. & M. R. E., 18 111., 320; Christian County v. Oyerholt, Id., 233 ; Kinney v. Sherman, 38 Id., 530. 80 ELEMENTS OP A LIEN. OF THE EFFECT OF FEATID. lien to the extent of the work done or materials fur- nished. The principle that equitable relief will not be granted to a suitor unless he comes into court with clean hands,* would apply in such a case.f But a contract founded in fraud is voidable only at the option of the in- nocent party, it is not absolutely void per se, for the con- tractor may treat it as valid, and hold the owner to its strict performance if he so elects. This power of elec- tion is vested solely in the injured party; no one can exercise it for him. This strict rule of law deprives sub- contractors, or the laborers and material-men from re- scinding the contract between the original parties in such a case. The liability of the owner is to the con- tractor, for damages for the fraud, in case he elects to abandon the contract on that account ; such a liability cannot be made the subject of a mechanics' lien on the part of the sub-contractors. They cannot waive the fraud and sue for the work done ; first, because the election is personal to the contractor, and second, be- cause the owner would still be liable to the contrac- tor for the fraud, and thus subjected to double dam- ages. J The effect of the decision of Linn v. O'Hara, is to give sub-contractors a right of lien in such a case, only where the contract is entirely performed by the contractor. The difficulty in the case arises par- tially from the fact, that the moment the contract is re- scinded, the work is not performed in pursuance with * Tripp V. Cook, 36 Wend., 143. t Martine v. Nelson, 51 111., 433. J Linn v. O'Hara, 3 B. D. Smith, 560 ; and see Cunningham V. Jones, 3 Id., 650 ; Nolan v. Gardner, 4 Id., 737 ; Dennistoun V. McAllister, Id., 729. THE CONTEACT. 81 OF THE EFFECT OF A MUTUAL MISTAKE. a valid contract, whicb. would seem to defeat the lien where such a contract is essential to its existence. But I do not see why such a pre-existing implied contract would not be presumed as to give the contractor a lien under any of our statutes for the work actually performed. It has been held that where the contrac- tor, through unfair means, secured an exorbitant price for the work to be done under the contract, the court will only enforce a lien for the actual value of the work and materials furnished under it.* § 69. Same— Mutual Mistake.— Where parties en- ter into an agreement, through a mutual mistake as to the nature and extent of the work, the court will always relieve either of the contractors from a per- formance. It probably would try the question col- laterally where the claimant abandons the contract on account of such mistake, and seeks to enforce a lien for the work done. And where the contractor enters into a contract, relying upon the representations of the owner, as to the character of the work required for its performance, he may, if he does not inspect the same until the contract is completed, enforce a lien for the enhanced value of the work over and above the con- tract price, necessarily performed on account of the misrepresentations of the owner, whether made through fraud or mistake.f But it seems if the builder, in such a. case, had ascertained before the com- pletion of the contract, that the work was of a more expensive character than it was represented to be, he * Odd Fellows' Hall v. Masser, 34 Pa., 507. t Martine v. Nelson, 51 111., 433. 6 82 ELEMENTS OF A LIEN. GEIfEKAL KULES APPLICABLE TO LIENS. should have notified the other party at once, and either abandon the contract, and recover the value of the work done, or complete it for the contract price.* § 70. Rules governing the Right of Lien. — As a re- sume of the principles governing the right of lien, as affected by the contracts between the several parties to it, the following general rules are submitted : 1st. Every lien must be based upon a valid pre-ex- isting contract, express or implied. 2d. Strict and full performance must be shown, on the part of the claimant and the contractor, and of all persons standing between the claimant and the owner, unless excused by the act or assent of the person con- tracting for such performance. 3d. The lien cannot be enforced, without the owner is chargeable in an action of assumpsit in favor of the contractor, for the value of the work done, or materials furnished; nor without the claimant can maintain a similar action against the person contract- ing therefor. 4th. The equities of the persons performing labor and furnishing materials, are superior to those of either the contractor or the owner. * See Martine v. Nelson, 51 111., 433. ELEMENTS OF A LIEN. CHAPTEE IV. THE WOEK AND MATERIALS. § 71. In General.— The several statutes in this State unite in extending the lien to all work and materials used in the erection of, or in altering, improving, or repairing any building, or the appurtenances thereto. This includes all work or materials that ordinarily en- ter into or are used in the construction of a building, and which are contained either expressly or impliedly in the terms of a building contract.* § 72. Incidental Expenses. — It is not necessary that the work should be done, or the materials used di- rectly upon the improvement itself, provided it was required for the performance of the contract with the owner. Thus, where the contract imposed upon the builder the duty of removing rock from the surface of the land preparatory to laying the foundation walls, the court held, that the powder' and fuses used in blasting, being necessary to the performance of the contract, must, when actually furnished and used, be classed within the list J| things denominated in the * The Hazard Powder OcA. Byrnes, 12 Abb., 469 ; Butler v. Kivers, 4 R. I., 3S ; McDermo^t;. Palmer, 8 K Y., 383 ; Wood v. Donaldson, 17 Wend., 550. &S\ 84 ELEMENTS OF A LIEK OF APPURTEifANT OE IN^CIDEKTAL "WORK. lien law as " materials in building," and for whicli a lien may be acquired. * So, work done by means of derricks in hoisting the materials used in the building, f is within the statute ; and, it seems, a claimant by al- leging that it came within the terms of the original contract, may secure a lien for work and materials furnished for the contractor, in rigging up such an ap- paratus, X or for labor and materials in putting up lightning rods. § "Where the labor of hauling ma- terials to the building is indispensable to the perform- ance, alien maybe enforced therefor, || and the haul- ing away of dirt for the foundation, or the debris of the building, will fall under the same rule.^ But the work must be done either upon, or for, the building, as well as called for in the building contract. A lien will not attach for painting a fence, under a statute limiting the right to work done in "repairing a house." * * So, claims for ferriage, postage, etc ,f f or for cooking, done upon the grounds, for the men engaged in the work, under an employment by the contractor, J| are not within the provisions of the statute. § 73. Money is not materials, in the sense used in the lien laws, and one who furnishes funds to the con- * The Hazard Powder Co. v. Byrnes, 12 Abb. Pr., 469. t Tizzard v. Hughes, 3 Phila., 361. j Dixon V. La Forge, 1 E. D. Smith, 732. § Quinn v. Sloan, 2 Id., 594. II In re Hope Mining Co.,1 Sawyer, U. S., 710. i Hill V. Newman, 38 Penn., 151. ** First Nat. Bank of Salem v. Eedman, 57 Me., 405. tt Wilamette Falls v. Eemick, 1 Oregon, 169. IX McCormick v, Los Angelos, 40 Gal., 185. THE WOEK AND MATEEIALS. 85 OF APPUKTENANT OK INCIDENTAL WORK. tractor, to aid Mm in tlie completion of his contract ; or wlio loans money to the ownei', to be used in the erection of a. building by him, or for the payment of laborers and material-men, cannot acquire a lien under the statute.* § 74. Specific Statutes. — Mechanics', liens are of statutory origin, and show a constant growth in the powers and privileges afforded to claimants. Under the original act of 1830, the mechanic only was entitled to a lien. Both of the acts of 1844 provided for material- men as well as mechanics, and the right was finally extended to all sub-contractors and laborers. Previous to 1870, the lien was confined to the erection, altera- tion, or repair of buildings and their appurtenances ; but the Legislature in that year extended the applica- tion of all statutes previously passed to bridges, trestle- work, and other structures connected with railroads ;f and in 1872, to wharves, piers, bulkheads, and bridges, and structures connected therewith.^ These amend- ments, however, cannot afEect the State Act of 1873, or or the New York City Act of 1^75, as they are specifi- cally applicable to stsitntes previously passed. § 75. Same. — In respect to what may be termed pri- vate property, no enlargement was made in the terms of any statute until 1875, when the New York City Act was made applicable to " any building, vault, wharf, fence, or any other structure in the City or County of New York," and to grading, filling in, and otherwise im- proving any lot in said city and county, and the side- * Godeffroy v. Caldwell, 2 Cal., 487. t Laws of 1870, Chap. 529; see Part III. I Laws of 1872, Chap. 669 ; see Part III. 86 ELEMENTS OF A LIEN. OF THE BUILDING. Bvalk or street in front of or adjoining the same,* and at the same time the State Act was amended so as to include any " house, "building, or appurtenance to any house, building or huilding-lot, including fences, side- walks, paving, wells, fountains, fish-ponds, fruit and ornamental trees, and every improvement whatever to any such house, building or building-lot."f The pecu- liar provisions of these amendments will be noticed in the consideration of the several acts. The other stat- utes in this State remain as before, save as amended in 1870 and 1872 ; it will be necessary, therefore, to speak briefly of what is included in the term " buildings or their appurtenances." § 76. What is included in the term " Buildings." — A building is a structure erected upon and attached to the freehold ; but a structure may be a fixture and not a building ; walls, fences, gates, etc., are structures but not buildings. Taken in its broadest sense, a building can mean only an erection intended for use and occu- pation as a habitation, or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice such as a house, a store, a church, a shed, etcj The common well-understood meaning must have been understood by the law makers, which includes those structures only which have a capacity to contain, and are designed for the habitation of man or animals, or the sheltering of property.§ A place of shelter is prob- * Sections 1 and 3, Laws of 1875, Chap. 379, and see Part III. t Laws of 1875, Chap. 233 ; X Truesdell v. Gay, 13 Gray (Mass.), 311. § La Crosse & Milwaukee E. B. Co. v. Vanderpoel, 11 Wis., 119. THE WORK AND MATERIALS. 87 OF THE BTJILDING. ably the most concise definition, and may be given as a test-line between a mere structure as such, and a building. Thus a high brick wall erected on three sides of a furnace-stack standing at the base of a hill, to protect it from earth-slides, is not a building,* it being built for protection and not for shelter. The fact is often of more consequence than the intent; thus, if this same structure was inclosed on the fourth side and covered, it would doubtless become a build- ing, as it would then be in fact a place of shelter, al- though not intended for one. § 77. Same— Must be annexed to the Freehold. — Mechanics' lien laws were provided by the Legislature for the purpose of creating liens upon real estate. At common law the mechanic had a lien on personal property benefited by his labor, but this lien being a mere possessory right, could not apply to real estate, which is incapable of manual possession. The statu- tory remedy simply extends the same right to real estate, by giving the mechanic a charge thereon in the nature of a mortgage-lien. As the law pertains only to the realty, it follows that, to come within the intent of the statute, the structure should be so affixed to the soil as to become a part of the realty. Thus, in New Jersey, the Supreme Court held, that a floating dock attached to the defendant's land, and which was built iji sections on other portions of his land, was not a building within the meaning of the statute, because it did not stand upon a lot or curtilage.f But on the other hand, the Supreme Court of Arkansas held, that * Truesdell *. Gay, 13 Gray (Mass.), 311. t Coddington v. Dry Dock Co., 3 Vroom (N". J.), 477. 88 ELEMENTS OF A LIEN. OF THE BUILDING. a wharf-boat is a building within the meaning of the statute, as it is attached to the soil, and appertains to the realty.* So, in Indiana, the Court held that the term "any building" comprehended a building with perpendicular walls and a shingled roof, used as a floating but stationary warehouse, notwithstanding a clause in their statute to the effect that "the court shall render a decree for the amount of each claim against the owner of the building, and direct the house and interest of the employee in the lot to be sold." It was contended by the defendant that the statute contemplated only such buildings as are erected on, and permanently attached to, the realty. But the Court observed, that while it may not be doubted that the mind of the Legislature was directed to such buildings, that is not sufficient reason for say- ing that it was exclusively so. The- present case was manifestly an exception, otherwise injustice would be done. The building, although not erected on the lot, was attached to it; and the employer had such an interest as might be sold on execution. The statute being remedial, should receive such a construction as most effectually to meet the beneficial end in view, and to prevent a failure of the remedy. Under the rule adopted in Indiana and Arkansas, every covered struc- ture is either a building or a boat ; and a boat, by being permanently attached to the land, for local habi- tation or the purposes of trade, becomes a building within the statute, provided it is in fact a place of shelter. * Galbreath.' v. Davidson, 25 Ark., 490. THE WORK AND MATEEIALS. 89 FIXTURES. § 78. Fixtures. — It may be stated as a general rule of law, that materials incorporated into a building in such a manner as to become fixtures, will subject the entire structure to a lien for the value thereof. If the lien is filed against the owner of the fee, the materials must become fixtures as between grantor and grantee; that is, permanently affixed to the realty.* But where a lessee is solely charged with the lien, it will extend to all erections or improvements made by him upon the demised premises, although he may have the right of removal during the continuance of his term. The lien extends to such a building, even when erected by a tenant, from year to year, or at will. Thus, when the lessee of an inn erected a ball-room resting upon stone posts slightly imbedded in the soil, and removable without injury to the inheritance, the Court of Appeals held that the ball-room being within the principle of erections made for the purposes of trade, removable by the tenant,, was chargeable in a lien against such lessee, and the right of removal, upon a sale thereon, would pass to the purchaser.-j- § 79. Is an Entire Structure a " Material ? "—Ma- chinery, etc. — With the exception of the State Act, the right of lien extends only to the performance of labor or furnishing of materials for huilding, altering, or repairing a house or other building and its appur- tenances ; the question has often arisen under a similar provision in the statutes of other States, whether an * Gray t. Holdship, 11 S. & R. (Pa.), 413 ; McGreary t. Os- borne, 9 Cal., 119. t Ombony v. Jones, 19 N. Y., 334. 90 ELEMENTS OF A LIEN. FIXTUBES — ENTIRE STEUCTUEES. entire structure, made and completed elsewhere, and moved upon the lot, or attached to the building, was a " material " within the statute. In Connecticut, under a clause giving the right of lien in case of "materials furnished and services rendered in the construction, erection, or repairs of any building," the court held that machinery furnished for fitting up a woolen-mill is not within the statute, although so attached as to be- come fixtures,* for the reason that it does not consti- tute an erection^ const/ruction^ or repair of a building ; but that if furnished at the time of the erection of the building, and as a part of the contract therefor, it would be an " erection" within the statute. The same rule would probably apply if the machinery was added to a building so erected, for if the machinery had be- come a part of the building by forming a portion of the original structure, it is difficult to see why a repair of the machinery would not be a repair of the build- ing. Under this rule, the size or nature of the struc- ture is not material, provided it is in a completed form at the time of its being placed in, or attached to, the building. Hence, no lien attaches for the equipment of a paper-mill previously erected, with fixed machin- ery, for the manufacture of paper, under a statute giving a lien to one who " shall build or repair, either in whole or in part, ahouse,^a?^rires, or improvements ;''''\ * See Massin v. Persse & Brooks' Paper-Works, 30 Conn., 474. t B. T. Iron Manufacturing Co. v. Bynum, 3 Sneed, Tenn., 368 ; and see under the same law, in effect, Graves ■». Pierce, 56 Mo., 433 ; Hanesler v. Mo. Glass Co., 52 Id., 453; and Summer- ville V. Wann, 37 Pa. St., 183. THE WORK AND MATERIALS. 91 AEB ENTIEE STBUCTUEES " MATERIALS ? " nor will it apply to the iron castings- to be used in a manufactory building.* But in California, machinery furnished and used in a mill,f and in Maryland, ma- chinery for a factory, and furnaces, when bricked into the cellar of a private ht)use,J have been made the. subjects of a mechanics' lien. §81. Same— Completed Buildings. — This principle has been carried out in the case of entire buildings constructed elsewhere and sold and moved upon the premises of the contracting owner, for the reason that such structures cannot be considered as materials used in the erection or repair of buildings. !Neither do they in any sense represent the result of labor in the erec- tion of a building upon the premises in question. In Illinois this principle has been carried to such an ex- treme as to deprive the builder of the privilege of a lien upon either the lot upon which the building was erected by him or the one to which it was subsequently moved where the separate lots are owned by different persons ; thus, where there were three ad- joining lots in the same enclosure, two of which be- longed to A, and the other to B ; a carpenter erected for A a building on B's lot, which was subsequently moved to the lot belonging to A ; it' was held by the Court that a lien for the erection of the house would not attach to the building or either of the lots.§ § 82. Same. — ^The foregoing rule in the case of buildings will only apply where they are sought to be * Greenwood v. Tennessee Manufacturing Go. f Donahue v. Cromartie, 31 Cal., 80. J Weber v. Weatherby, 34 Md., 656. § TJnderhill v. Corwin, 15 111., 556. 92 ELEMENTS OF A LIEN. ARE ENTIEB STRUCTURES " MATERIALS ? " charged as separate buildings. "Where they are in- corporated into the construction or repair of other buildings erected or being erected upon the la,nd of the owner, they are " materials " within the statute. A contractor under a general contract for making certain additions and improvements to buildings, a part of which consisted in placing upon the premises a small house owned by the contractor to be used in connection with the other buildings, and upon which he was to make certain additions after it had been moved upon the premises in question, may acquire a lien for the entire amount due upon the contract, although the separate building was included therein at a separate price ; the Court holding that although a lien will not ordinarily attach upon premises for a building already constructed to be sold and placed thereon, still if it is to constitute an addition to or a part of a larger stnicture, it may be regarded as materials used for that purpose. But where an unfinished building is moved upon the premises and completed thereon a lien will attach for the entire cost of the building. It is often difficult to decide whether the repairs made upon a building are sufficient to bring it within the above rule. Ordinary changes will only give a lien to the extent of the work thereon in its new position.* Nothing less than a completion of an unfinished structure, or such an overhauling as to make substan- tially a new building out of an old one, will give a lien upon the premises for the entire value of the building in such a case. * Steigleman v. McBride, 17 111., 301. THE WOEK AND MATERIALS. 93 OS THE APPURTENANCES. § 82. The State Act of 1875 gives tlie right of lien to any person who shall hereafter perform any labor in erecting, altering, or repairing any housCj building, or appurtenances to a house, building, " or building-lot, including fences, sidewalk, paving, wells, fountains, fish-ponds, fruit and ornamental trees, and every improvement whatever to any such Jiouse, huild- ing, or building-lot,^'' the entire clause in parenthe- sis being an addition, and the portion in italics of par- ticular effect in respect to one who furnishes completed articles to be affixed to the soil or buildings in ques- tion. Everything furnished for a building, or build- ing-lot, which by becoming a fixture to it improves its value, will give the person furnishing the same a lien under this statute without regard to the mode or place of its construction. So, under the New York City Act of 1875, all improvements to building-lots are within the statute, but the law as to the building itself and its appurtenances remains as before. § 83. Appurtenances.— All labor and materials fur- nished upon a building or its appurtenances are chargeable in the lien. We have seen that the term " building " will include the structure, and everything so affixed to it at the time of its erection as to become what is known in the law as a fixture ; but the term " appurtenances " is more indefinite in its signification. According to Jacobs,* it is used to " signify things both corporeal and incorporeal, appertaining to another thing as principal," and that " outhouses, yards, or- chards, and gardens are appurtenant to a messuage." * Jacobs' Law Dictionary, "Appurtenances." 94 ELEMENTS OF A LIEN. OF THE APPUETEXAlfCES. Bouvier, in his Law Dictionary, adopts tlie definition given by the U. S. Supreme Court,* that it signifies, " things belonging to another thing as principal, and which passes as an incident to the principal thing," This includes the curtilege,f the right of way, water- courses,;}: and, generally, everything necessary to the enjoyment of a thing.§ Ta^gart, J. who delivered the opinion of the Court of Appeals in McDermot v. Palmer, 1 1 intimated that the term " appurtenances " as used in the Mechanics' Lien Acts would include the yard, sidewalk, and areas, and that work and labor performed thereon, or materials furnished therefor, are within the meaning of the statute. There are several reported cases in this State, where the lien was filed for flagging the sidewalk in front of the premises, and no objection was raised against the nature of the work.^ But in Illinois, the courts under a similar clause restrict the lien for appurtenances to work done upon the premises to be charged thereby, and hold that no lien can attach for the construction of a vault under the sidewalk in front of the premises.** As we have seen, this question has liot been directly passed upon in our courts, but should they adopt the Illinois rule, it would, in effect, cut off the right of lien for the construction or repair of drains, for while drains are undoubtedly " appurtenant" to the house or build- * Donnelly & Libby, 10 Peters, 54. t % Blackstone's Com., 17. \ Angell on Watercourses. § 4 Kent's Com., 478. II 8 N. Y., 383. i 1 Sweeny, 259. * * Parmelee v. Hambleton, 19 111., 615. THE WORK AND MATERIALS. 95 STKTTCTURES PROTECTED FROM PUBLIC POLICY. ing for whidi they are constructed, but a small por- tion of the work is generally performed upon the lot benefited thereby. The New York City Act, and the State Act Amendment of 1875, have relieved the courts of much difficulty in this respect, by pointing out several things included in the term "Appurten- ances," but this will not exclude other things under the principle of exokcsio unius. § 84. When the Lien will not Attach— Public Build- ings. — ^The rule that only the property of a municipal corporation which is not devoted to public use, can be levied upon and sold under execution, applies to judg- ments under the Mechanics' Lien Law, and prevents the enforcement of a lien upon property devoted to pub- lic use. The fair construction of the law allows a se- curity to the mechanic in such a case, to be obtained if the land and building could be sold to enforce a Judgment in an ordinary civil action, but not other- wise.* Thus a lien cannot be enforced against a pub- lic school-house.f Neither can a county be subjected by this process to the loss of its buildings, such as court-houses, public offices or jails, which are indispen- sable for the public benefit, accommodation, or safety,{ or any other property shielded from private sale, on the grounds of public policy.§ This doctrine has been extended in some States, so far as to shield the prop- erty of all public corporations in which the public * BrinckerhofE «. Board of Education of N". Y., 3 Daly, 443; S. C, 6 Abb. N". S., 428, and 37 How., 499. f Id., Williams v. Controllers, 18 Pa., 3f5. X Wilson V. Commissioners, 7 Watts & Serg., 197. § Foster v. Fowler, 60 Pa., 27. 96 ELEMENTS OF A LIEN. STET7CTURES EXEMPTED FROM PUBLIC POLICY. have an interest, such as railroads,* and public bridges.f Section twenty-one of the New York City Act of 1875, contains a specific provision, that " Noth- ing contained in this act shall be construed to author- ize the filing of any claim against any building or property used for public purposes," thus conforming the law to the decisions of the courts. § 85. Same— Public Bridges. — By the General Act of 1872, X the liens of mechanics and material-men have been extended to wharves, piers, bulkheads, and bridges ; but will this permit a public bridge used by the people as a highway to be subjected to a sale under the statute ? Such an act would be most detrimental to the rights of the people at large, and contrary to public policy. It would seem, that the rule in relation to public buildings ought to apply in such a case. This construction would not render the statute nugatory, for it might still apply to private bridges. A public bridge is a common highway. A private bridge is similar in its nature to a private right of way, and is subject to most of its incidents. The char- acter of a bridge depends more upon the use that is made of it than upon the means by which it was erected. If individuals make a public highway, the mode of remuneration authorized, as the right to take toll, will not deprive it of the character stamped upon it by the purposes to which it is applied. The right to erect a bridge, and to exact toll from passengers crossing it, is a franchise that can be granted only by * Dunn & North Mo. E.E., 24 Mo., 493. t McPheeters v. Merrimac Bridge Co., 28 Mo., 465. X See Part III., "Statutes." THE WOKK AND MATEEIALS. 97 STKUCXURES EXEMPTED EKOM PUBLIC POLICY. the State. That right is personal, and cannot be trans- ferred without express authority of law. In conferring the privilege, regard is had to the ability of the appli- cant to build and keep up the bridge ; and, as personal considerations may influence the grant, the franchise of common right is not transferable. The right of transfer in a corporation is confined solely to property.* § 86. Same — Railroads, Canals, etc., under State Control. — Although the statute is extended to all structures connected with railroads in this State, the same principle that protects public bridges would estop the mechanic from asserting a lien upon any public work owned or controlled by the State or municipal government. After a State has built a railroad at great expense, for the public use and convenience, it would be unreasonable to suppose a power remained in any individual to deprive the public of the benefit contemplated by it. Hence, work and labor performed upon, or materials furnished for the line of a public railroad, built under authority of the State for public use, will not subject it to a mechanics' lien.f This rule would protect the Erie Canal, and the structures con- nected therewith, from a statutory lien. But buildings erected in furtherance of a private enterprise may be subjected to a lien, although the purposes of their use is to a certain extent public, as for example, private canals, railroads,^ bridges,§ and normal school build- * McPheeters v. Merrimac Bridge Co., 28 Mo., 465. f Dunn V. North Mo. E. K., 24 Mo., 493. j Hill V. La Crosse, etc., K. E. Co., 11 Wis., 214. § McPheeters v. Merrimac bridge Co., supra. 7 98 ELEMENTS OF A LIEN. STEUCTUEES EXEMPTED FEOM PUBLIC POLICT. ings, not the property of the State.* But it Las been held that the buildings of a corporation formed for the purpose of supplying a town with water and dedicated to that use, are protected from the liens of mechanics, on the ground of public policy. § 87. Same— Rights of Sub-contractors.:^-Gruernsey, in his work on Mechanics' Liens,f commenting on the case of Brinckerhoif v. Board of Education, and its effect on the Law of 1863, says ; " This lien was by a sub-contractor and under the law of 1851-55, and under it no personal action could be rendered against the owner in favor of a sub-contractor (citing cases). The object and effect of this statute is simply to take from the owner money actuallj'' owing by him upon his cont^:act, and apply it in payment for the labor and materials which sub-contractors, or material-men, have contributed towards the performance of the same con- tract. * * * It would be proper, therefore, to hold now that a lien filed on public property exempt from sale on execution, would have the effect to transfer to the lienor any money due from the city on account of the contract, and give a general Judgment therefor." This is simple justice and sound reason, although not applicable to the present act, as it prohibits the lien which must first attach in order to subrogate sub-con- tractors to the rights of contractors. The Supreme Court of Nebraska holds that a sub-contractor cannot enforce in the lien-action the personal liability of a municipal corporation to a contractor for work done * Board of Education v. Greenebaum, 39 111., 610. t § § 35-6-7. THE WORK AND MATERIALS. 99 STRUCTURES EXEMPTED FROM PUBLIC POLICY. upon a public building, for the reason that the con- tractor is not entitled to a lien in such a case, and that the sub-contractor cannot acquire a lien where the original contractor cannot, and the lien is necessary in order to connect him with the owner.* The only reason given by the courts, or existing in fact, for pro- tecting public property from a mechanics' lien, is that a sale of it would be prejudicial to public interests, but this does not prevent the contractor from recover- ing judgment against a city in a personal action on his building contract, enforceable by execution against property not protected by public policy from the lien of an execution. Now, the effect of a lien being to transfer the personal liabilities of the owner to the claimant — a sub-contractor — there is no reason why he should not use this means for enforcing, like the contractor, a personal judgment against the corporation. The reason for the former rule being inapplicable, in such a case the rule itself should not apply. But if public policy should so far protect the administration of a municipality, as to shield it from suits in favor of third parties with whom it has had no dealings, it ought not to prevent the acquisition of a lien upon the fund due the contractor, and as to that fund be held, by virtue of the notice of the lien, as trustee for the benefit of the sub-contractor ; and where personal liabilities may be enforced by the sub- contractor against the owner for the amount due by him to the contractor, and there is no statutory pro- hibition from filing a claim against public buildings, * Kipley v. Gage County, 3 Neb., 397. 100 ELEMENTS OF A LIEN. OB THE APPLICATION OF MATEEIALS. the rights of the sub-contractor would perhaps be pro- tected in that manner. § 88. The Application of Materials Furnished. — Any one who " furnishes materials " for the construc- tion of a building is entitled to a lien under all of our statutes. ' The strict letter of the law would be com- plied with by delivering the materials at or near the building for which they were furnished, whether or not such materials were actually used in its construc- tion or repair. But on the other hand, the true theory of a mechanics' lien is repugnant to the idea that any property may be encumbered thereby, which has not been, in fact, benefited by the services or materials of the claimant. The benefit and the lien should be as inseparable as cause and eifect. It is unfortunate that upon this point unison does not always exist between theory and practice, and that the practice of the differ- ent States is as irreconcilable as the theories of their respective coui-ts; and this even though the several statutes are practically the same iji this respect. § 89. Same— Pennsylvania Rule. — In Pennsylvania, under- a law providing that " every dwelling-house shall be subject to the payment of the debts con- tracted for, or by reason of any materials fownd or provided by any lumber merchant for, or in the erect- ing and constructing such house," if a debt is con- tracted for, and on the credit of, a building, and the lumber delivered in pursuance thereof, a lien will be created, although the lumber is subsequently sold to other persons, and not used in the building.* The * Presbyterian Church v. Allison, 10 Penn., 413; Wallace v. Melchior, 2 Browne, 104; Odd Fellows' Hall v. Masser, 24 Penn., 507; gingerly v. Doerr, 63 Penn., 9. °l1 THE WOKK AND MATERIALS. m^W v\ OF THE APPLICATION OF MATERIALS. reason for this rule is briefly set forth in the case of Hinchman v. Graham, by* the Court, Tilghman, J., as follows : " I was once inclined to think that the lien might be restrained to the materials actually used in the building ; but, on reflection, I find that such a con- struction is not warranted by the words of the law, and would operate unjustly on -those who furnish the materials ; for how can they tell the exact quantity that the building will require, or what control have they over the purchaser i * * The merchant having sold and delivered the materials, for the purpose of being used in the building, could do no more. It would be unjust, therefore, to throw upon him the risk of future application." But probably the true theory upon which this rule is established is that the materials furnished on the credit of a building and placed by it, becomes in the eye of the law a part of the building ; and this without regard to the person at whose request it was furnished. Thus, in the case of White V. Miller,-}- the Court held that materials fur- nished under such circumstances to the contractor for the execution of a building, belong to the building and not the contractor, and are not liable to a levy in an execution against the latter. This necessarily fol- lows from their standpoint upon this question, for if the lumber was furnished on the credit of the build- ing, and not of the contractor, it is not easy to under- stand how it could be seized and sold by his creditors. The title to it was vested, by delivery, not in him, but in the proprietor of the building, subject only to the * 2 S. & E., 170. t 18 Penn., 54. 102 ELEMENTS OF A LIEN. OF THE APPLICATI02S' OF MATEEIALS. revindication of the seller. The ownership of it, be- tween the time of delivery and of working it into the building, could not be in the contractor, because it was delivered to him, not on his own credit, but on the credit of the building to which it was destined. It was sold for the building, and, consequently, to the owner of it. He had power to protect it from the contractor's creditors, and he cannot charge his inac- tivity to the material-men, who had nothing to do with it. The ownership had passed by the delivery, and the building had become debtor for the price. The application of the lumber was to be seen to by the owner. The general principle upon which the Pennsylvania rule is founded is stated in the case of White V. Miller,, to be that, as soon as owners of lots ceased to be their own builders, they put it in the power of the person employed by them to occasion losses to mechanics and material-men which they ought not to bear ; and it was to remedy this mischief that the Legislature established the principle that materials and labor are to be considered as having been fur- nished on the credit of the building, and not of the contractor ; the principle being held to be not only a Just, but convenient one. Whether the builder be the agent of the owner or an independent contractor, his appointment to the work creates a confidence in him which was not had before ; and the consequences of a false confidence ought not to be borne by those who had no hand in occasioning it. Nor does the rule bear hard on, the owner. He has it in his power to detain the price of the building while there are outstanding charges against it^ or to stipulate for security against THE WORK AND MATERIALS. 103 OF THE APPLIOATION OP MATERIALS. those that might afterwards turn up ; and, if he use common prudence, any loss which occurs will eventu- ally fall on the author of it. If he do not, he cannot charge the mechanic with the consequences of his own supineness. § 90. Same. — The Pennsylvania rule is followed in New Jersey,* Ohio,f Maryland, J Wisconsin, § and Missouri. II It will be noted that the statutes in these States are all the same in efEect as those of New York- State ; thus, in Maryland, the term " shall extend to all work done and materials furnished" is used. In Ohio it reads, " any person who shall furnish materials for erecting and repairing any house, in pursuance of an agreement with the owner." Wisconsin, like Penn- sylvania, uses the term " work done and materials found." New Jersey adopts the phrase " labor per- formed and materials furnished ; " and in Missoui'i, " every mechanic or other person furnishing work or materials for buildings," is entitled to a lien. Under these provisions, all that the claimants in the above States have to show, is the fact that the materials were furnished for the use of the building ; upon the theory that it would be altogether unreasonable to require the material-man to follow his materials to the build- ing, and to make positive proof of the fact that they were actually used for the purposes for which they * Morris County Bank v. Eockaway Manufacturing Co., 1 McCarter Ch., 189. t Beckel v. Petticrew, 6 Ohio St., 347. t Greenway v. Turner, 4 Md., 396. § Esslinger v. Huebner, 33 Wis., 632. II Morrison v. Hancock, 40 Mo., 561. 104 ELEMENTS OF A LIEN. 1 OF THE APPLICATION OF MATERIALS. Avere alleged to liave been purchased. Sucli a require- ment is considered not only extremely inconvenient but entirely impracticable.* § 91.Sajne — The Delivery. — As we have seen, the sale for and the delivery at a building completes the right of lien, under the Pennsylvania rule. The con- tract of sale has been considered in Chapter IIL Al though the term generally employed by the courts as •to the delivery, is a " delivery at or near the building,' that is only necessary where the material-man is re^ quired by the terms of the sale to make such a delivery. A delivery at a wharf or railroad depot, or at any other place, for shipment to the building, that may be specified and agreed upon between the parties is suffi- cient, as it is under the contract a complete delivery for the building. The delivery at one place or another is only important as an evidence of the purpose for which materials are sold. Where gross materials have to be worked up into articles suitable for the building, and which cannot convenietitly be done upon the premises, it would be useless to require the materials to be first delivered at or near the building and then subsequently moved to a manufacturer's.f § 92. Exceptions to the Rule. — There are two excep- tions to the Pennsylvania rule; the first is in the case of fraud. Of course, unappropriated materials contracted for a building through collusion with the material-man, and never in fact intended to have been placed upon the property in question, will not be allowed to charge * Morrison v. Hancock, 40 Mo., 561. t Hinchman v. Graham, 2 S. & K., 170. THE WOEK AND MATEEIALS. 105 OP THE APPLICATION' OF MATEEIALS. the fund that should be applied to the payment of bona fide lienors. Fraud is an exception to every rule, that is, it works the destruction of every claim founded upon it. The second exception relates to the character of the materials. The owner should be supposed to know Just the kind of material to order for the construction of his building, and in ordinary cases a lien will attach if the material called for is not adapted to the par- ticular use designed for it ; but as an evidence of good faith on the part, of the material-man the materials fur- nished by him ought to be of the kind that would induce a careful, prudent, and skillful man, acquainted with the building, to believe that they could be use- fully employed in its erection, and where they are en- tirely useless because of a character totally unadapted to the building no lien will arise.* § 93. The Illinois Rule. — A different rule is es- tablished in Illinois, which is briefly thus expressed: Two things must concur to give the lien ; 1st, The contract, which may be expi'ess or implied; and 2d, The furnishing of the materials actually used. Under this rule it is not the contract, or the actual furnishing of the materials in pursuance therewith which creates the lien, but the use of the materials so furnished, and this seems to be the only equitable rule if the rights of third parties are to be regarded. Thus, under their statute giving a lien to " any person who shall by contract with the owner of any piece of land, furnish labor or materials for erecting any building " thereon, the Court held that the Legislature only in- * Odd Fellows' Hall v. Masser, 24 Penn., 507. 106 ELEMENTS OF A LIEN. s OF THE APPLICATIOK OV MATBKIALS. tended to give this lien for the materials actually used in, or the labor really bestowed upon the building sit- uated upon the premises against which the lien is sought to be established ; for the reason that otherwise the claimant would secure a lien, not for anything he has done to enhance the value of the building, nor by reason of any encumbrance upon it, but because- the owner of the premises had purchased lumber for the purpose of using it on the premises, but which he never did so use. The very essence of the lien created by this statute is the furnishing the materials of which the building is constructed. It continues in the party furnishing the materials of which the build- ing is erected, a quasi property in those materials, and others with which it has been commingled in the building, and allows him to follow it, thus transformed, for the purpose of getting his pay. If the materials be furnished for the purpose of being put upon lot one, and they are placed in a building upon lot two, the lien is on the last lot, where they were actually used, and not on the first. There is no lien on the premises till the material is put upon them. Any/ other construction would allow a lien, if a man go to Chicago and buy lumber to build a house on a particu- lar lot in Chillicothe, and in 1/r-ansitu the lumber is burned up; Such is not the intention or true construc- tion of the law.* This rule is followed in California under a statute providing for a lien in favor of any person " performing labor or furnishing materials for the * Hunter v. Blanchard, 18 111., 318. THE WOKK AND MATEKIALS. 107 OF THE APPLICATION OF MATEEIALS. construction or repair of any wharf or building,"* and in Connecticut under a similar statute,f and in Massa- chusetts, J Iowa,§ and Maine, j Tlie principle embraced in these decisions is founded in natural justice, that the party who has enhanced the value of the property by incorporating therein his labor or materials, shall have security in the same, though changed in form and in- separable from the property. But Justice does not re- quire that he should be allowed the security in the same property for the price of materials which became no part thereof. To allow a lien for materials sold by one party to another under the representation that they would be wrought into a building, but which were not, may deprive others who provide materials which are actually used from an effective lien upon the same property. § 94. The True Rule in my opinion is, that all per- sons dealing with the owner, may as to him secure a lien for materials sold on the credit of a building, whether or not they are so applied by him. But per- sons furnishing materials to any person other than the owner or his agent, must, in order to charge the inter- est of the owner, show that such materials have actu- ally entered into the performance of some improve- ment, erection, or repair of his property authorized * Houghton V. Blake, 5 Cal., 240 ; Bottomly v. Grace Church, 3 Id., 90. f Chapin v. Persse & Brooks' Paper Mill, 30 Conn., 461. J Rogers v. Currier, 13 Gray, 129. § Cotes V. Shorey, 8 Iowa, 419. II Lombard v. Pike, 33 Me., 241 ; Perkins v. Pike, 43 Id., 141; Taggart v. Buckmore, Id., 77. 108 ELEMENTS OF A LIEN. OF THE APPLICATION OF MATERIALS. by tim to be made, and that in all cases, lien claimants whose materials have actually been used upon the property to be charged, will take precedence over those where such . application has not been had. The owner will be estopped from pleading that materials purchased by him on the credit of a building, have not been applied to the use intended at the time of the purchase, for the purpose of defeating a lien on the part of the material-man. But the principle of estoppel, so plainly applicable in such a case, will not apply where a contractor, without any collusion be- tween himself and the owner, procures material on the credit of the building, and uses it elsewhere. To allow a lien in such a case, would subject the owner to a double charge for the same article, as he would undoubtedly be liable to a lien in favor of the per- sons whose materials were actually used in their place. To avoid any possible loss in such a case, mar terial-men, when dealing with irresponsible contractors, entirely on the credit of the building, should see that the materials furnished by them enter into its con- struction, so as to become a charge against the owner. § 95. In New York State the courts have not passed upon this question under the Mechanics' Lien Acts ; for this reason I have given considerable space to the rea- soning of the courts in their support of the two rules so diametrically opposed to each other. I have no doubt, however, that the Illinois system will be adopted by us, at least so far as the same is followed in the rule I have laid down in the preceding section. The General Term of the Court of Common Pleas considered the question THE WOKK AND MATERIALS. 109 OF THE APrLlOATlON OP MATERIALS. in its application to liens upon ships* for materials " furnished for or towards building a ship," in the case of Phillips V. Wrightjf in which the Court, per Sand- ford, J. says : The evidence fully sustains the fact that the timber was furnished for this particular ship, and charged to Bishop & Simonson, (the contractors). * * * But it appears also, and so the referee states, that a part of the timber so furnished was not used in the vessel. Some of it was sold by the contractors, and it is probable that some of it went for the repair of other vessels. The plaintifE insists that the non-appli- cation of the timber to the building of the vessel for which it was bought, is immaterial ; that the statute confers the lien when it is sold and delivered for build- ing the vessel, without regard to its application for that purpose. We do not think that this position is a sound one. The whole theory of a lien for labor and materials rests upon the basis, that such labor and ma- terials have entered into, and contributed to the pro- duction or equipment of the thing upon which the lien is impressed. This imposes upon the material-man the necessity of seeing to it, that his materials are applied to the purpose for which they are procured, . if he design to rely upon a lien given to him by reason of such purpose. The laborer makes the application him- self, and hence the difficulty does not extend to his case. If the law were as the plaintiff contends, it would produce inextricable confusion. A ship builder in doubtful credit would buy lumber and materials sufficient for building a ship, from several distinct per- * 2 K. S., 493. t 5 Sandford E., 360. no ELEMENTS OF A LIEN. OF THE APPLICATION OF MATERIALS. sons, he would buy tliem for a particular ship des- ignated, and each material-man would sell to him " for or towards the building " of that ship. He would sell some of the materials thus acquired and use some in building or repairing other ships. Which of these material-men is to have a lien ? Or are all entitled to a lien amounting in the aggregate to several times the value of the materials which actually entered into the construction of the ship, thus probably totally displa- cing or reducing to a small proportion the lien of la- borers, sail makers, etc., whose work or supplies were used in the building of the ship ? It is very apparent that such an interpretation of the statute would lead to its complete defeat, as far as any praiseworthy ob- ject is to be effected by it. It may well be doubted whether a literal interpretation of the words of the statute* confer a lien unless the articles furnished are actually used in the building, etc. of the vessel against which it is claimed. Can it be said that materials /or or towards huilding a ship, when no part of them enter into or become part of the ship'? They may be fur- nished for the purpose of being thus applied, but is that the same as being furnished /or the ship f In other words, does not the idea of furnishing an article for, or towards, the building of a ship, embrace as well its ap- plication to, or in the ship, as its procurement for that object ? I may buy an article of furniture, for the pur- poses of my library, and with a full intention of placing it there, and then change my mind, and sell it to an. other. Can it be said that such article was bought for * 2 E. S., 493. THE WORK AND MATERIALS. Ill OF THE APPLICATION OF MATERIALS. or towards furnishing my library ? This interpre- tation of -the statute imposes no undue hardship upon material-men. The act gives them a privi- lege over all general creditors, on the footing that the articles furnished by them have contributed to the making of the ship against which it is claimed. It is certainly not asking too much that they shall look to the application of what they furnish, if they intend to create the statutory lien. The reason- ing of the court in this case favors the full Illinois rule, but its findings were limited to the case of materials furnished to the builder and not to the owner. I am still of the opinion that the Pennsylvania rule should apply as against the OM'ner, for materials furnished to him direct on the credit of the property on which the lien is sought. ELEMENTS OF A LIEN. CHAPTER V. OF THE PROPERTY CHARGEABLE THEREWITH. § 96. We have considered tte parties to the lien, the contract, and the work and materials rendered under it. The only remaining element that enters into the generation of a lien is the property upon which it is ' a claim or charge. Under some statutes the notice is necessary to the legal existence, and may properly be deemed an element of a lien, but, as it is deemed desirable to treat the acquisition and enforcement of a lien together, the notice of a lien will be con- sidered hereafter. In respect to the property charge- able with a lien, it may be said that the specific build- ing or structure into the composition of which the mechanic's claim has entered, is primarily chargeable. We have in the preceding chapter considered this branch of the subject, in connection with the work performed or. materials furnished thereon. But the lien, under the several acts in this State, is a charge not only upon the building or structure upon which the work or material is applied, but also upon the lot or parcel of land upon which the same stands, and which is appurtenant thereto and secondarily liable. It is often difficult to determine how much land in area is so appurtenant to the building or other struc- PROPERTY CHARGEABLE. 113 THE "LOT." ture as to be covered by the lien. It may be stated as a general rule that the lien may cover so much of the tract of land on which the building is erected, as is necessary for the full and complete enjoyment of the structure for the purposes to which it is used.* § 97. The Lot. — The term generally used in this State to designate the area of land to be covered by a lien, is the " lot on which the same stands." Now, a " lot " is a very indefinite quantity. Its proper mean- ing when applied to real estate is a portion of land that has been separated from other lands, by survey, allotment, or usage, but in common parlance it means simply a piece or parcel of land without regard to size, such as a town lot, a wood lot, or a mill lot.f But within the meaning of the statute, it denotes one single parcel lying together, known as one tract, bought and sold as such, its metes and bounds generally known and accepted, as being the tract, lot, or parcel of laud which the parties naturally understood as that which would appertain to or be connected with the building or buildings after they should be erected.^ It is the known and not the unknown boundaries that limit the area of ground. It is not necessarily the particular lot upon which the building is erected as marked out and designated on some maji or town plat, but the actual enclosure connected therewith, whether it con- * Nelson v. Campbell, 28 Penn., loG; Derrickson v. Edwards, 5 Dutcher (N. J.), 468 ; Eoby v. Corporation of TJniyersity of Vermont, 36 Vt., 564. t Houck's Lien Law, page 181. X Bank of Charleston v. Curtiss, 18 Conn., 343. 8 114 ELEMENTS OF A LIEN. THE "LOT." tains one or more of sucli lots. Thus, where the lien is for work performed upon a mill, it will extend to the entire yard or millway connected with the mill, and all other contiguous land used, and necessary to be used, in working the same to advantage.* So where two or more adjacent lots are used without any actual division between them as one mill lot, a part of the buildings and machinery being upon one and a part upon the other, the lien extends to both lots, though the precise spot where the work was done may be entirely within the limits of one of them.f This rule will apply whenever two or more town or city lots are thrown into one plot and used for a common purpose, whatever that purpose may be ; the ideal division lines being disregarded in such a case. J § 98. Must be a Territorial Rule. — The courts will not in this State impair the security of a lien by limit- ing the sale under foreclosure to any particular portion of the premises covered by it, unless upon a state of facts establishing a high degree of equity on the part of the owner. But the courts of New York will hardly follow the rule adopted in New Jersey ; § that the claimant may include in his lien enough land which, together with the house, will be sufficient to discharge and satisfy it in full ; as this makes in all cases a pecuniary and not a territorial rule of limitations. § 99. City Lots. — Less difficulty arises in cities than in small, towns in this respect ; since in the former * Findlay v. Roberts, 19 Ga., 163. t Choteau v. Thompson, 2 Ohio, 114. § Vandyne v. Van Ness, 1 Halstead Oh., 485. PROPEETY CHARGEABLE. 115 SEVEEAL BUILDIISrGS. case the lien will almost invariably cover a lot of land made up of one or more ordinary city lots that are con- tained in the same enclosure with such building, and to be used in connection therewith. The line of de- markation in such a case is boldly drawn. Generally, the walls of an adjoining building or a surrounding fence will designate and fix the area of land that is appurtenant to the house and chargeable with the lien. § 100. Where there are several buildings on the same plot of ground and they are so unconnected with each other, that each may be sold separately without injury to the others, a mechanic cannot, for work done upon one of the buildings, subject the entire parcel of ground and all the buildings thereon, to a lien. The portion of land taken up by the other build- ings not being in any sense appurtenant to the building in question, are not chargeable with its debts. But on the contrary, where work is done for one of several buildings used together and depending upon each other for the purposes of trade, manufacture, or residence, the lien will extend to the entire plot of ground, and all the buildings thereon, for in such a case the work done to each one increases the value of the entire class of buildings connected with it. Thus, a claim filed upon a building, fronting on a back street, but con- nected with and forming the rear portion of a large hotel facing on the front street, is a charge upon the entire property.* So each of all the buildings erected as one tenement and its appurtenances is liable for the * Field V. Oberteuffer, 2 Phila., 271; Trustees, etc., v. Young, 2 Duvall (Ky.), 586. 116 ELEMENTS OF A LIEN. SEVERAL BtriLDIlfGS. work done on tlie others.* This rule does not make it necessary that the lien for every sort of a build- ing shall cover all the land on a portion of which it is erected. It may be a mill, or one of several barns on a very large tract of land, or a factory or warehouse on one side of it, capable of separation from the main tract without injury to it. Although each building in such a case can only attach to it land sufficient for its own purpose, it creates no argument against the con- necting together under one lien all adjoining buildings necessary to each other. § 101. Same — ^the only objection to the entire lien in such a case is the extension of it to property on M'hich the mechanic or material-man has expended nothing. But this is allowed by the law when it is extended to any ground not covered by the building. It is extended to the marble mason, who puts up the front without touching the back of the building. Where the ground and the several houses erected upon it are designed for a united enjoyment, the law treats them as a unit in relation to the liens which it gives. Upon this princi- ple liens are given upon whole lots and all their im- provements, when streets are opened and paved for the common benefit, even though the lots may extend back to other streets ; and so in Holland and other countries where liens are given for the repair of dykes to shut out the ocean, and ditches to drain the country ; they are liens on all the properties receiving the benefit, whether they adjoin the work or not.f * Nelson v. Campbell, 28 Penn., 156. f Nelson v. Campbell, Id.- PEOPEETY CHAEGEABLE. 117 BUILDINGS ERECTED UNDEE AN ENTIRE CONTRACT. § 102. Same— The Wisconsin Rule.— This principle has been so extended in Wisconsin as to charge the area of ground intendeds to be covered by several buildings to be used for a common purpose, although but one or more of them are. in fact erected thereon ; thus, vs^here a builder contracted to erect certain depot buildings for a railroad company on a block of land owned by them in the city of Milwaukee, to be built in sections and paid for as the work progressed, and after one sec- tion was constructed, the company failed to make its payments, the Court held that a lien would attach upon the entire block, to the extent of one acre (the limit of the statute), for the balance remaining due to the contractor, although such block was composed of several distinct city lots.* § 103. Work done for the Common Benefit of Sep- arate Buildings. — Where the claim accrues for work upon a structure that is appurtenant to, and necessary for the use of, two or more distinct buildings, it will extend the right of lien to them all, although the buildings themselves have no connection with each other ; thus, where a stack is erected for the common benefit of a pork-house and a distillery, the mechanic may have a lien on both establishments.^ § 104. Where Several Buildings are erected under a single Contract, the builder may, unless prohibited by statute, file a single lien upon the entire property, and the entire debt will become a charge upon each * Hill V. La Crosse and Milwaukee E. E. Co., 11 Wis., 214. t Bodley v. Denmead, 1 W. Va., 249. 118 ELEMENTS OF A LIEN. ERECTIONS UNDER SEPARATE CONTRACTS. and all of the buildings.* But it has been held, where the work was performed under such circumstances, equally upon each of seven adjacent houses, one of which was transferred before the notice of lien'was filed, that the lien was a valid charge upon the remain- ing six houses only for their proportionate part of the whole claim (six-sevenths), although some payments had been made by the owner on general account. f A single lien should be filed upon a dwelling-house, barn, and outhouses, all erected under one contract. | So it seems a single lien will attach for the aggregate cost of building a dwelling-house and barn, although erected under separate' contracts, the one in parol the other in writing.§- So under the New York City Act of 1830, the Court of Appeals of this State held that where the builder contracted with several persons jointly for the erection of separate houses upon lots owned by them separately, that they will be held jointly liable for the entire work, and a single lien may be filed upon the several buildings for the aggre- gate amount due under the entire contract. || § 106. Same — Where the Contract is not Entire and the amount furnished to each building can be estimated, separate liens must be filed, even though all * Paine v. Bonney, 4 E. D. Smith, 734; Livingston v. Miller, 16 Abb., 371. Sed contra Butler v. Eivers, 4 E. I., 38. f McAuley v. Mildrum, 1 Daly, 396. X Bank of Charleston v. Curtis, 18 Conn., 343. But the build- ing must be contiguous. Campbell v. Furness, 1 Phila., 373. Chambers v. Yarnall, 15 Pa., 265. § Chapin v. Persse, 30 Id., 461. 11 Mandeville v. Eeed, 13 Abb., 1 73 ; sed contra Eathbun *. Hay- ford, 5 Allen, 406 ; Davis v. Farr, 1 Harris, 167. PEOPERTY CHARGEABLE. 119 UNDEK THE NEW YOBK CITY ACT. of the buildings belong to the same owner. Thus, where a lumber dealer sold lumber for three paper mills belonging to the same person, two of which stood upon one lot, and the other upon a separate lot, keeping distinct account of the lumber furnished to each building, and then filed a single lien for the general balance upon all the buildings, the Court de- clared the lien to be absolutely void, both in respect to the description of the premises, and the amount of the lien.* And the same principle has been followed in Illinois.f So, where the owner occupied several buildings as a factory, on some only of which materials were furnished, the Court held that the lien would only cover the specific buildings benefited thereby for the value of the materials furnished to each respect- ively, although all the buildings were situated on the same plot of ground, and used for the same general purpose.! So a single lien cannot be filed upon a block of buildings for the general balance due upon the separate contract for the construction of each house.§ Nor can a single lien be filed upon two sec- tions of a canal for the amount due on account of the separate contracts for the repair of each section. § 106. Same— The New York City Act of 1875, provides that, whenever " one claim is filed against * Chapin v. Persse, 30 Conn., 466 ; Goepp v. Garliser, 35 Pa., 130. f James v. Hainbleton, 43 111., 308 ; Strigleman v. McBride, 17 Id., 300. I Dallas L. & M. Co. v. Wasco Woolen Mills Co., 3 Oregon, 527. § Landers v. Dexter, 106 Mass., 531. 120 ELEMENTS OF A LIEN. WHEEE THE EXTENT AFFECTS LANDS ONLY. two or more buildings^ or other improvements owned by the same person, the person filing such claim must, at the same time, designate the amount due to him on each of such buildings or other improvements, otherwise the lien of such claim shall be postponed to other liens." This provision is only inserted to regu- late the amount of incumbrance on each building, as between the lienor and other encumbrancers. As be- tween the claimant and the owner, the ordinary prin- ciples respecting liens upon several buildings remain unchanged. § 107. The Extent of Land to be Covered by the Notice. — We have seen that in New Jersey the courts have held that the claimant may extend his lien over a sufficient area of land to satisfy and discharge it. Although this may not be followed here in full, it is not without its support in theory and in practical com- mon sense. Where other buildings are not affected thereby, no serious difficulty can 'grow out of including in the lien-claim more land than is actually necessary to satisfy the debt, and a larger plot of ground than is strictly appurtenant to the buildings thereon, as buildings, provided it is all in one lot or parcel of ground. The law certainly intends, if there is land enough in the lot to cover the amount of the lien, that it shall all be included therein ; as it is a statutory provision, intending where' possible to give & full secu- rity to the mechanics and material-men, who improve the entire property by the erection of buildings thereon. Who can tell under the circumstances how much this will require ? And why should the contractor, when there is land enough to secure his claim, and which is PROPERTY CHARGEABLE. 121 EFFECT OF Alf OVEK STATEMENT. clearly subjected to it, be compelled to abridge tlie quantity and thereby lose a portion of his lien ? It does not follow because a lien is on a large tract that it must of necessity all be sold. The mechanics' lien is just like any other lien, all that is necessary to do is to sell enough to pay the claim. A mortgage or ordi- nary judgment is a lien, but in enforcing either of them by sale, the sheriff or other officer can be, and generally is, restricted to the sale of so much only as is necessary to pay the debt ; and, whether at law or in equity, there is but little difficulty in adjusting rival liens; and the statutes or decrees under which these proceedings take place, usually expressly direct the sheriff or other officer having execution or levari facias, to advertise, and sell, and convey the buildings and the land in the same manner as directed by law in case of land levied upon for debt.* § 108. Same — Will an over Statement destroy the Iiien ? — It follows from the preceding remarks that the lien may cover an area of ground more than sufficient to satisfy the' debt, and that in such a case the sale under foreclosure may be of a less area than that contained in the lien. As the extent of land cannot be increased after the notice is filed, the claimant should file a lien upon enough ground in connection with the buildings to amply secure his claim, even though it covers more ground than the strict letter of the statute allows. Suppose it be true, that the plaintiffs in filing their lien claim, have embraced in it more land than, by a reasonable consideration of the act, they would be en- * Vandyne v. Van Ness, 1 Halstead, Oh., 491. 9 122 ., ELEMENTS OF A LIEN. EFFECT OF AK OVEE STATEMENT. titled to, does this absolutely destroy all their right of a lien in every part of it, buildings and all ? If this be so, the Lien Law rests on a very uncertain basis. It is, in fact, rather a trap than a security for a just debt ; for as we have no way whatever for ascertaining the precise amount of land which a court or jury might happen to think should go with the building, and be affected by the lien, if . the claimant, from this or any other cause, should be so unfortunate as to make his claim a little too large, although no one could by pos- sibility be injured by it, his whole lien claim is abso- lutely not good, notwithstanding the claimant furnished his labor and materials, to the amount of thousands, on the faith of the very lien alone, but which, in con- sequence of the mistake, he is actually deprived of, and his claim wholly lost. Such a construction of the stat- ute neither sounds in equity, logic, or law.* My advice would be that where a large tract of land is connected with the building erected thereon, and the security at the best is inadequate or doubtful, the notice should be filed upon the entire tract. The metes and bounds of such lot or tract being known and established, the Court might well hold that in erecting the building credit was given by the mechanics and material on the strength of a lien upon the building and the land to the extent of the lot as it then stood. Such a lot being distinct from other lots or tracts, and within the inten- tion of the parties, the claimant may well include it in his lien, and not be forced to cause a new survey to be made within narrower limits which no one recog- * See Derrickson v. Edwards, 5 Butcher (N. J.), 468. PROPERTY CHARGEABLE. 123 UNDER THE STATE ACT. nizes, and thus to carve out a new artificial lot for the express purpose of conforming with, a statute only en- forceable in an equitable proceeding. But if the Court should hold that the ai'ea of ground was too extensive, it may decree the sale of a less quantity without in- validating the entire lien. § 109. The State Act— As Amended in 1873 and 1875) extends the right of lien to the lot ox farm of land upon which the statutory improvements are made, while the adoption of the word "farm" may not receive a literal construction, so as to charge an extensive farm of two hundred or five hundred acres, especially where the building is constructed as a coun- try residence, and not for farming purposes. Still, it undoubtedly enlarges the provisions of the original act, as an additional term, included in an amendment, must be construed as giving the original act an addi- tional force or meaning. "We can readily see that a building may be erected upon a large tract of land, at such an expense, and under such circumstances, that its value depends mainly upon the increased value of the land, and that if sold separately, it would not pay half the cost of its erection. In such a case, under the State Act, I think the lien would extend to suffi- cient land actually improved in value by the erection of the building, to, in connection with thtj building itself, pay all demands arising from its construction. If the land is poor, or distant from markets or rail- roads, it may take a large quantity of it to pay the claim, and it would be unreasonable and impolitic to apply to it a territorial rule of construction applicable solely to lands of great market value. Neither should 124 ELEMENTS OF A LIEN. LIEKS UPON LEASEHOLD PEOPERTY, the claimant be compelled before lie can possibly know what the result of the sale will be, to limit his security in such a case to a plot of five, ten, or even fifty acres of the same lot, tract, or farm of land. § 110. Leasehold Property. — From the very na- ture of the relation of the parties, a different rule must be adopted whenever the interest of a lessee is solely chargeable with a lien. As the sale in such a case places the purchaser in the position of the orig- inal tenant, the lien must cover all the lands named in the lease. In other words, it is a lien on the lease, and the rights of the lessee under it. As the lease- hold contract is entire, neither the property leased, nor the rent reserved, is severable without the consent of the lessor, and one must take under an assignment the entire premises covered by the lease. DEFENSES TO A LIEN. CHAPTEE VI. PAYMENT. § 111. Perhaps tlie natural treatment of this sub- ject would place the consideration of the acquisition of a lien prior to that of the defenses to a lien ; since it must be acquired before it can be defended. We follow the inverse order for the reason that the require ments of, and the defenses to a lien being first under- stood, its acquisition and enforcement is comparatively easy and simple. § 112. Payment made in good faith to a contractor on account of the building upon which a lien is sought, is, j?r(9 tanto, an absolute defense. Neither the owner nor his property is liable unless it appears that a pay- ment is due the contractor from him.* It follows, therefore, that if the contract price has been fullypaid to the contractor according to its terms, the owner can- not be made liable to any claimant whose right of lien rests solely on the terms of such contract.f The de- * Carman v. Mclncrow, 13 IST. Y. , 70 ; Loonfe v. Hogan, 9 Id., 435 ; Doughty v. Deylin, 1 E. D. Smith, 635; Spaulding v. King, lid., 717. f Kke V. Irwin, 1 Sand., 14 ; Thompson v. Yates, 38 How., 143 ; Eandolph v. Garyey, 10 Abb., 179. 126 DEFENSES TO A LIEN. EFFECT OP PAYMENT. fense of payment may be set up against the claim of a sub-contractor, althougli it wa,s made to the contractor ^ before it became due under the terms of the contract, provided it was made in good faith.* But a payment made by collusion between the owner and contractor for the purpose of defeating the design and intent of the statute, or made before maturity, for the purpose of defrauding the sub-contractor or other lien claimants, will be disallowed, and lienors may recover the same as if it had never been made.f In the absence of col- lusion, there is no reason why an owner shall not make an advance payment. A party to a contract may waive any or all of its provisions intended solely for his bene- fit and protection, without affecting its validity as to the other provisions. An owner of property erecting houses or making permanent improvements, should not be required to ascertain how many employees the con- tractor may have, or how much money may be due them, before he can venture to discharge his own obli- gations. He may pay the full amount of the contract to the contractor at any time, provided other claimants have not already perfected their right of subrogation by the notice required by the statute.;]; § 113. Payments after Notice. — Although pay- ments in good faith at any time before the filing of a notice of lien will be binding upon all the parties, pay- * Carroll v. Couglilin, 7 Abb. (N. S.), 73 ; Schneider v. Hobein, 41 How., 232. ' * t Lynch v. Cashman, 3 E. D. Smith, 660; Smith v. Coe, 2 Hil- ton, 364; Quimby v. Sloan, 2 E. D. Smith, 594. I See Prescott v. Maxwell, 48 111., 82 ; Spaulding v. Thompson, etc, 27 Conn., 573. PAYMENT. 127 APPKOPKIATION — BY THE DEBTOR. ments made after notice will not protect the owner from the rights of the lienor acquired at the time of the filing. The claimant then acquires a valid lien upon the premises for the value of his services or materials, toi the extent of the amount then due from the owner, and payment to affect his rights must be made to him.* It is not necessary that the owner should have actual notice / all the claimant is reqiiired to do, is to file his claim. That is constructive notice to all parties. The owner must, before making payments to the contractor, ascertain whether any liens are filed, if he desires to protect himself against the statute. Having neglected to do so, he pays the contractor at his own peril. f § 114. Appropriation of Payments. — 1. By act of the Parties.— The Debtor. — Primarily the right of ap- pi-opriation belongs to the debtor. He has the control over his own funds and ma.y apply them to what pur- poses soever he pleases. If he owes two persons, he may of course elect which to pay. So also, if he owes one person on two separate accounts, he may elect which account he shall first reduce or discharge. This principle is founded in the Civil Law, and being fully charged with reason and common sense, is recognized and adopted, both in America, and modern Conti- nental Europe. If, therefore, the creditor accepts a payment specifically made upon a certain account, he is bound to the conditions which the debtor has ap- pointed, even though at the time he refused to admit them, * BlauTelt V. Woodworth, 31 N. Y., 285 ; Schneider v. Hobein, 41 How. Pr., 232; McBurney v. Bradbury, 6 La. An., 39. t Smith V. Ooe, 3 Hilt., 364; Aff., 29 JST. Y., 666. 128 DEFENSES TO A LIEN. APPLICATION — BY THE CEEDITOK. § 117. The Creditor's Right of Application. — Where the application is not made by the debtor at the Ume of payment, the right of election is vested in the cred- itor. The control of the fund which gave the right of appropriation having passed to the creditor, the right of appropriation passes with it. Thus, where the claim- ants held both a lien claim and an unsecured book ac- count against the owner, the Court held that they were entitled to apply a general payment to the book account in preference to the prior claim secured by the lien, and that their books of original entries were evidence as to the application made at the time of payment.* § 116. Of the time when the Application may be Made. — In the case of The United States v. Kirk- patrick '9 Wheat., 737; Justice Story in delivering the opinion of the Court says; "it is too late for either party to claim a right to make an appropriation of the pay- ment, after the controversy has arisen." Although the same Court intimated in a previous case,f that no restric- tion existed on the power of the creditor to make the payment at any time he pleased,, the Court of Appeals of Virginia held that the creditor was bound to make the appropriation soon after the payment was received. J And the Supreme Court of this State, in the case of Allen V. Culver,§ expressed an opinion that the creditor is not bound to make the application im- * McQuaide v. Stewart, 48 Penn., 19S; Waterman t). Younger, 49 Mo., 413. f Mayor of Alexandria v. Patten, 4 Cranch, 330. X Hill V. Southerland, 1 Wash. R., 128. § 3 Den., 384. PAYMENT. 129 APPLICATION' — BT THE CKBDITOK. mediately, but may make it within a reasonable 'time.* What amounts to a reasonable time, depends upon the peculiar circumstances of each case. Ordinarily the right of election will continue as long as the condition of the several claims and the rights of all parties in connection therewith remains in the position occupied at the time the payment was made. The trial of a cause, and probably the commencement of legal pro- ceedings affecting the claims, will terminate the right of election by the creditor.f And where a payment was made — ^without an actual appropriation at the time by either of the parties — to the owner, against several of whose buildings the contractor held distinct liens, and the claimant, after suffering one of the liens to expire, through neglect, strove upon the trial to apply the entire payment to claims covered by the void liens, and thereby enforce the full amount of the lien exist- ing against one of the buildings held by an innocent third party, the Court held that even if the application was equitable the claimant was too late to make it.J But in the case of Marsh v. Oneida Central Bank,§ the Supreme Court of this State held, that a bank holding a note against one of its depositors is not bound to make the application of a deposit to the note upon its maturity. It may wait until a Judgment is re- covered thereon, and then assert the right even as against a third, party who received an assignment * See also to the same effect Pattison v.. Hull, 9 Cow., 747. t See Harker v. Conrad, 13 S. & K., 301. % Harker v. Conrad, Id. §34 Barb., 498. 9 130 DEFENSES TO A LIEN. APPLICATION' — BT THE CEEDITOE. of the deposit after judgment was entered on the note. § 117. As to the manner of signifying the Appli- cation. — It is not necessary in all cases that the in- tended application should be made by either the debtor or the creditor in express .terms, it may be implied from circumstances. Thus, where the debtor makes a pay- ment exactly equaling only one of the debts in amount * it must be inferred as having been intended for that particular claim ; and so a creditor, by crediting pay- ments generally upon an open account, implies an in- tention on his part to apply them to the items in order of time, even though he has security for the earlier items, but not for the others.f So the application may be inferred on the pai't of the creditor in certain cases, from his giving special or general credits upon one or more of the claims. J § 118. As to what Claims the Creditor is precluded from applying General Payments. — ^The debtor may apply payments to any debt. His right of election is absolute, but that of the creditor is limited. The choice of the latter being in contravention of the civil law, is restricted in range to a strictly equitable selec- tion. A creditor cannot make an inequitable appli- cation of payments.§ It is not competent, therefore, for a creditor holding an existing debt to apply a general payment to the discharge of a contingent liability he may have assumed for the debtor, such as * Eobert «. Garnie, 3 Cai., 14. t Truscott V. King, 6 N. Y., 147. t Allen V. Culver. 3 Den., 284. § Beidenbecker v. Lowell, 33 Barb., 9. PAYMENT. 131 APPLICATIOK — BY THE COURT. the unmatured note of the debtor on which he is an indorser.* Nor can he apply it to any future liability to the prejudice of a past due claim.f Nor can a surety exonerate himself by applying money which his principal, being a debtor to him on a different account, may have advanced, although without any particular direction. J But the creditor may apply a payment to an unsecured as against a guaranteed debt,§ and to a several in preference to a joint liability. || § 119. 2. Appropriation by Actof Law.— Where the parties fail to make a specific application of payments within the time allowed to them under the foregoing section, then the Court makes the application for them. The general principle adopted by the American Courts, where the payment is thus left to be appropriated by law, is to apply it according to the intrinsic justice and equity of the case.^ " The true principle," says Chancellor Walworth, in the case of Stone v. Seymour,** " unquestionably, is that stated by Chief Justice Marshall in Field v. Holland (6 Cranch, 27) ; that the debtor, by neglecting to manifest his intention,- or to direct as to the application of a partial payment, tacitly surrenders the right to the creditor, and enables him to apply the payment in such manner as he shall think proper, if such application is not inequitable. And if the * Niagara Bank v. Eosevelt, 9 Cow., 409. t Baker v. Stackpoole, 9 Cow. , 430. t Niagara Bank v. Eosevelt, supra. § Clark V. Burdett, 2 Hall, 197. B Van Eenssela'er v. Eoberts, 5 Den., 470. Tf 2 Greenleaf on Evidence, 533. ** 15 Wend, 19-39., 132 DEFENSES TO A LIEN. APPLICATIOIT — BY THE COURT. creditor is not in a situation to exercise the right, or if he declines the exercise of the power to make the ap- propriation, because he has no interest in the question, and the rights of third persons only are concerned, the Court, upon whom the exercise of the power de- volves in that case, should make the application on equitable principles." But in the application of this principle our courts are governed to a ' considerable extent by the rules of equity contained in the Civil Law, from which our entire theory of appropriation of payments emanated. § 120. Under the Roman System, the debtor only has the privilege of appropriating the payments made to the creditor among one or more of several classes of claims. And where he owes several debts to one and the same creditor, and makes a payment to him, with- out declaring at the same time which of the debts he has a mind to discharge, whether it be that he gives him a sum of money indefinitely in part payment of what he owes him, or that there be a composition agreed on between the creditor and debtor, or in some other manner ; the debtor will continue to have the same liberty of applying the payment to whichsoever of the debts he has a mind to acquit; But if the creditor were to apply the payment, he could apply it only to that debt which he himself would discharge in the first place, in case he were the debtor. For equity requires that he should act in the affair of his debtor as he would do in his own. And if, for example, in the case of two debts, one of them were controverted and the other clear, the creditor could not apply the payment to the debt which is contested by the PAYMENT. 133 APPLICATION BY THE COUET. debtor.* But if neither the debtor nor the creditor has made the application, the Court, acting under established rules of presumption, makes it for them, and as the debtor had the right primarily to declare his preference, his presumable intention is first re- sorted to as a rule for determining such application. Hence arose the principle that the Court should direct the discharge of the most burdensome debt, such appli- cation being most beneficial to the debtor, and presump. tively such as he intended should be made. The pay- ments were therefore applied rather to an interest- bearing debt than to one without interest ; to one secured by a penalty or for which a surety is bound, or in the payment of which his honor might be con- cerned, rather than to an ordinary debt resting on a simple stipulation ; to a discharge of what he owes in his own name rather than one contracted as surety for another. Thus, a payment is applied to a debt for which the debtor has given security, rather than one founded on a simple bond or promise ; to a debt that is liquidated and simple rather than to a disputed or conditional claim, and to an old or matured debt rather than to a new or maturing one.f " In Ms qucB prce- senti die de bentur constat, quotiem indistincte, quid so- litur, in gra/oiorem causam videri sohbtum si autem nulla prcegravet — id est si omnia nomina similia fuerint — in antiquioremr % * Pandects L., 6 D. de solut. t L. 3, § 1 ; 1. 4, D. de solut; 1 1 et 5 et 97 eod.; Strahan'a Domat,' Section 2282. I Pandects L., tit. 3, Art. 1, n. to n. 99, per Pothier. 134 DEFENSES TO A LIEN. APPLICATIOIf BY THE COUET. § 121. Application of the Roman System. — ^The Civil Law rule is followed in Spain,* Trance,! Hol- land,! ^^d Louisiana.§ In England, the rule does not seem to be settled, but in Scotland, tlie creditor is favored rather than the debtor. One theory of the Civil Law — that the debtor has the sale right oi elec- tion — is so repugnant to common justice that it has, as we have seen, been totally disregarded in this country. The Roman law proceeded upon the erroneous princi pie, that the creditor was bound to act upon the gold en rule of doing as he would be done by, if he were the debtor, overlooking the fact that there were con- flicting interests, that the golden rule should be ap- plied to the debtor as well as the creditor ; and that therefore the debtor, as well as the creditor, should be compelled to do as he would be done by under like circumstances. § 122. In this State, although the question has never been, to my knowledge, distinctly passed upon in its application to the Mechanics' Lien Law, the courts have to a great extent followed the Civil Law rule of appropriation by act of law. While it has often been said, that in this country the courts will apply paj^ments in such a manner as to be most bene- ficial to the creditor, a different rule prevails in New York State. Thus our courts, as under the Roman system, will apply an open payment to the satisfaction * Inst, of the Law of Spain, b. 3, Tit. 11. f Code Nap., Art. 1356. i Vanderlinden's Inst, of Holland b. 1, Ch. 18, § 1. § Civil Code of La., Art. 3163. PAYMENT. 135 APPLICATIOir BY THE COTJET. of a secured, in preference to an unsecured demand,* and to a fixed rather than a contingent liability, f and . to a liquidated or past due claim in preference to an unliquidated future or maturing liability. J So where a part of the indebtedness is enforceable, and the bal- ance barred by the statute of limitations, the Superior Court held that a partial payment made by the debt- or, who received a receipt in full, will be ' applied by the Court to the collectible portion of the indebted- ness; such application being most favorable to the debtor, will be implied to have been so appropriated by him. So where other things are equal, the pay- ment will be applied to an interest-bearing claim, or in such a manner that the payment itself will bear in- terest. § § 123. Sarae — Principal and Interest — Priority of Date. — It will be seen from a resume of the foregoing authorities, that where the application is to be made by the Court, the Civil Law rule of following the pre- sumable intention of the debtor is very closely followed in this State, although our courts claim to make in all cases a just and equitable application, without follow- ing exclusively the interest of either the debtor or the creditor. The Civil Law rule that payments, should first apply to the interest, || is also followed in this * Dows V. Morewood, 10 Barb., 183 ; Pattison v. Hull, 9 Cow., 747. f Niagara Bank v. Eosevelt, 9 Cow., 409. I Baker v. Stackpoole, 9 Cow., 430 ; and see Thomas v. Kelsey, 30 Barb., 368. § Davis V. Pargo Clarke (V. Ch.), 470. II Strahau's Domat, § 2384. 136 DEFENSES TO A LIEN. APPLICATION' BY THE COURT. State,* even tliougli the amount of the payment is precisely equal to the principal,f but when neither principal or interest is due, a ratable application will be made. J The Civil Law rule that where the debts are equal in character, priority of date gives priority of payment, is also adopted in this State, and an open payment will be applied to the discharge of the debt first due.§ In the case of an open running account, payment will be applied to the first items of the ac- count. II This follows not so much from the principle of the application of payments to distinct debts, as from the rules under which mutual accounts are cast and settled by the law, because the balance of account is considered as a single debt, of which all the items form a part.^ This principle of appropriating pay- ments to the first charges was adopted in a Mechanics' Lien suit in the case of Hauptman v. Catlin,** where the Court of Appeals held, that where the first of sev- eral items of a mechanic are unsecured by a lien, there is no objection to crediting partial payments to those items, and enforcing the statutory remedy for the resi- due ; and the same rule was followed in Nevada, where * State of Connecticut v. Jackson, 1 Johns. Ch., 13 ; Jencks v. Alexander, 11 Paige, 619. f People V. County of Few York, 5 Cow., 331. X Williams v. Houghton, 3 Cowen. 96. § Dows V. Morewood, 10 Barb., 183 ; Allen v. Culver, 3 Den., 284; Wheeler v. Cropsey, 5 How., 388; Hunter v. Osterhoudt, 11 Barb., 33 ; Webb v. Dickinson, 11 Wend., 62. II Allen V. Culver, 3 Denio., 284. 1" 1 American Leading Cases, 291. ** 20 N. Y.. 247. PAYMENT. 137 APPLICATION BY THE COURT. the first items accrued before the passage of the act.* The court will make the same application where all the items are secured by liens. f § 124. The Prevailing Rule in this Country seems to be directly the reverse to that of the Civil Law principalities, and substantially adopted in this State. Instead of favoring the debtor, the courts in many of our States will make the application which it is to be presumed the creditor would have made, and which it was his interest to make. J Under this contrariety of opinions, it is safest, without following too close to precedent, to adopt a rule founded on common sense, and flexible enough to be applied equitably to any case that may arise. As a basis for such a rule, applicable to a mechanics' lien, the leading case of Harker v. Con- rad§ commends itself favorably to our notice. The plaintiff in that action held claims against several dif- ferent houses, all of which were secured by mechanics' liens. A general payment was made without appro- priation by either party, and the lien upon one of the houses having expired, the lienor sought to enforce a lien upon the other — which had come into the hands of a lonafide purchaser for value — for the full amount of the lien against it, by applying at the time of the trial the entire payment upon the other liens that were lost by his own neglect. The Court, after hold- ing that his election was made too late for an appro- * Hunter v. Savage, etc., 4 Helm., 153. f See Beckel v. Petticrew, 6 Ohio St., 247 ; Briggs v. Titus, t R. I., 441. J 1 American Leading Cases, 283. § 12 S. & K. (Penn.), 301, 138 DEFENSES TO A LIEN. APPLICATION BY THE COUET. priation, by act of the parties, said: "In default of actual appropriation, the matter is to be determined by rules and circumstances of equity. The debtor has a right to make the application of the money in the first instance, and failing to exercise it, the same rights 'devolve on the creditor ; but where neither has exer- cised it, the law nevertheless presumes, in ordinary cases, that the debtor intended to pay, in the way which, at the time, was most to his advantage. Thus, if.it were peculiarly the interest of the party to have the money received in extinguishment of a particular de- mand, the law intends that he paid it in extinguish- ment of such demand, and that the omission to declare his intention was accidental. Such intentment is reasonable and natural, and one which, in most cases, accords with what was actually the fact ; it is there- fore equivalent to the exercise of the party's right by acts, or an express declaration of intention ; where, however, the interest of the debtor could not be pro- moted by any particular appropriation, there is no ground for a presumption of any intention on his part, and the law then raises a presumption for the same reason, that the payment was actually received in the way that was most to the advantage of the creditor. I think these principles, as furnishing general rules, may fairly be extracted from the cases. Then, accord- ing to this, if the controversy was between the original parties, it would admit of a doubt whether the . pay- ment ought not to be considered as having been made on the part of the account, for materials furnished to the houses in Fourth Street, because by having it so applied, the plaintiffs could receive their whole de- PAYMENT. 139 APPLICATION BY THE COURT. mand, witliout the expense and trouble of filing their lien against those houses, whilst Harker and Thomas (the owners) would not have been benefited by hav- ing it applied to either demand in particular. But the introduction of a purchaser, without notice, in the case, leads to an opposite result. He stands in superior equity to Harker and Thomas, who were bound in con- science to protect the title which they had conveyed to him, and who, there is therefore as much reason to presume, intended to make this payment for his bene- fit, as there would be to apply it in the way most con- ducive to their own interest, if a particular application of it would have produced an equal benefit to them- selves. The law ought to presume, and does presume, that every man is governed by the dictates of con- science, and that he will do what honesty requires of him, even though it be against his interest. Such pre- sumption can injure no one, nor does it injure the plaintiffs here. They were bound by every considera- tion of equity to perpetuate their lien on the houses on Fourth Street, and thus, while they secured themselves, to cast the burden on those whose duty it was to bear it. Having failed to do so, the purchaser must stand in superior equity, also, to them, and they must, there- fore, bear a loss which arose entirely from their own neglect, and which it was their duty to prevent." § 125. Payment by Act of Law. — Where a payment is made by or through a legal process, as under execution or administration of assets, the Court will usually apply the money received ratable to all the debts.* Thus, * 1 Am. Leading Cases, 393. 140 DEFENSES TO A LIEN. PEOOF OS PATMEIfT. where the holder of ten bills drawn by the same party, but indorsed by different persons, realized from the drawer a sum of money in England by an action founded upon all of them, the Court held that the creditor could not make the application to eight of the bills, excluding two on which actions were pending against the indorsers here, but that the net amount received must be distributed and applied ^rc> rata upon all the bills.* § 126. Fact of Appropriation a question for the Jury. — Although, in the absence of an effectual appli- cation of a payment by the parties, the Court will apportion it, still the question whether or not there has been an application by either of the parties is for the Jury to decide. It is a question of fact.f § 126 a. The Burden of Proof . — Where a sub-con- tractor, in an action to enforce a lien, has proved his ac- count and a performance of the contractor's agreement with the owner, this pi-ima facie shows money due the contractor out of which the plaintiff is entitled to be paid; to rebut it the onus is on the defendant. Rudd. v. Davis 1 Hill, 277. When work is done under a contract and all the days of payment are passed, the law will pre- sume that the full contract price is due and payable to the contractor, and to relieve himself from this pre- sumption the employer must allege and prove an actual payment, or such facts as tend to relieve him from the * Oowperthwaite v. Sheffield, 1 Sandf.,416 ; Aff., 3 N. Y., 243; Butchers & Drovers' Bank v. Brown, 1 N. Y. Leg. Obs., 149. t Eighter v. Stall, 3' Sandf. Ch., 608 ; Stewart v. McQuaide, 48 Penn., 195 ; Dickinson College v. Church, 1 "W. & S. (Penn.), 462. PAYMENT. 141 EFFECT OF ASSIGNING A PAYMENT. necessity of payment. And the allegation of payment must be in direct terms and not stated inferentially.* § 127, Assignment of payment. — It is a good defense by the owner to a lien proceeding in favor of a sub- contractor, that prior to the filing of the lien the con- tractor made a bona fide assignment, either legal or equitable, of the payment or payments under which such lien is sought to be enforced. Such an assign- ment will have the same effect upon sub-contractors, as would the satisfaction of the payment covered by it.f * Harbeck v. Southwell, 18 Wis., 418. t Young Stone Co. v. "Wardens, 61 Barb., 489. DEFENSES TO A LIEN. CHAPTER VII. SET-OFF AND COUNTBE-CIiAIM. § 128. Set-Off. — As between Owners and Con- tractors, and between Contractors and Sub-Contract- ors.— In proceedings between the contractor and the owner, the latter may set ofE a general indebtedness arising independent of the building contract. Any cause of action that would amount to a set-ofE or coun- ter-claim, under the code, to an action by the contractor against the owner for work or materials under the con- tract, may be pleaded as a set-off in the foreclosure of a mechanics' lien founded thereon. Such a claimant is not restricted to matters arising out of the contract under which the work is performed or material fur- nished.* For the same reason a contractor who is made a defendant in the foreclosure proceeding by the sub- contractor, may set up a counter-claim arising against him out of other matters, and recover Judgment for the excess ; -f so the contractor may set up against the sub- contractor any defense that would be available in a personal action between the same parties. Id. * Owens V. Ackerson, 1 E. D. Smith, 691 ; S. C, 8 How., 99. t Grogan v. McMahan, 4 B. D. S., 754 ; Miuer v. Hoyt, 4 Hill, 193 ; Afl., 7 Hill, 525, SET-OFF AND COUNTEK-CLAIM. 143 AS AGAINST 8UB-C0NTEACT0ES. § 129. Same — Between the Owner and Sub-Con- tractors.— In a lien proceeding, brought by a sub-con- tractor against the owner, a different question arises. Here no personal liability is sought. The proceeding is entirely in rem., to secure from the thing benefited the value of the work performed thereon under a con- tract made with another, A general claim we have seen may be allowed as against the general liability of the defendant, but can it be set off against a specific lia^bility, or will the court limit the set-off to a defense growing out of the sj)ecific claim made by the sub-con- tractor, under such circumstances ? It is certain that damages arising out of the same contract, whether they arise through the default of the sub-contractor or of the contractor, may be set off against thie sub-contractor's lien,* even though such damage is sustained subse- quent to the perfection of the lien, since his employ- ment was subject to the terms of the original contract, and governed in all respects by it.f But whether the owner is entitled to any set-off which is personal to the contractor, and does not arise out of the contract, as a defense to the lien proceeding on the part of such sub-contractor, is still a matter of doubt in our courts. § 130. Same,— The sub-contractor, merchant, or laborer, often contracts for the performance of the work, relying solely upon the conditions of the contract and the value of the property charged as a security for his undertaking. Under such circumstances he should in equity have a right to demand that the con- * Miller v. Moore, 1 E. D. Smith, 739 ; Gcmrdier v. Thorp, Id., 697. t Doughty V. Devlin, 1 E. D. Smith, 635. 144 ^ DEFENSES TO A LIEN. AS AGAIKST SUB-OONTBACTORS. tract shall be fully performed, axicording to its terms, by the owner ; and the owner as to third parties should be estopped from asserting any defense not legiti- mately growing out of the contract. If he is allowed to set up as against third parties who have trusted in the validity of the contract, a prior indebtedness against the contractor, or damages arising out of other transactions, mechanics and material-men are entirely deprived of any stable security, and rendered liable to have their liens defeated at any time by circumstances entirely beyond their control. This question first arose in the Court of Errors in the case of Miner v. Hoyt.* Although it was not the turning-point in the case it was considered by Senator Lott in delivering the pre- vailing opinion, and also by Senator Sherman in the dissenting opinion. Although they differed on the main point they were in unison on the question of set-off, holding that no set-off could be pleaded by the owner against the sub-contractor. " The mechanic," says Senator Lott, " is entitled to a recovery of his ■ debt out of the moneys due by the owner to the con* tractor under tTie contract, without reference to the gen- eral dealings between them. The statute intended to pro- vide a certain fund out of which the claims of the workmen should be paid, and the moneys agreed to be paid to the contractor are made applicable to that object. That fund can only be reduced by payments bona fide made. It is reasonable to suppose that every person doing work or furnishing materials to a building, has reference to the price or sum agreed to be paid to the * 7 Hill, 535. SET-OFF AND COUNTEK-CLAIM. 145 AS AGAINST SUB-OONTEACTOKS. contractor, and tlie times and terms of payment ; and it would defeat tlie object and intention of the statute to allow a general debt to be set off against the amount payable under the contract." Senator Lott, who delivered the only other reported opinion, came to the same conclusion on this point : " The Act of April 20th, 1830, gives to the person who shall have complied with its conditions, a lien upon any payments due or to become due, according to the terms of the contract. And the person who applies in pursuance of the act, it would seem ought not to be defeated of his lien by any transactions between the owner and the contractor, other than such as shall be equivalent to a hona fide payment on the contract; The principle of set-oif is, in my Judgment, wholly inapplicable. The lien is not to be lost because there was an old balance due to the builder from the contractor. Nothing short of actual payments made upon and expressly applicable to the contract, can operate to deprive the party of his statutory lien. This, it ap- pears to me, is a construction of the statute due alike to the terms used in it, and the manifest object of its framers." Same. — The question was not fully presented again until the case of Devlin v. Mack * was decided in the Court of Common Pleas. Here also, the case turned upon another point, but was again considered by the Court. Judge Brady, in delivering the controlling opinion, said : " It has not been decided in any case that I have been able to find, that a defense by way * 2 Daly, 94. 10 146 DEFENSES TO A LIEN.. AS AGAINST SUB-CONTKACTOES. of set-off or counter-claim, would be available to the owner in an action against him by a sub-contractor, * * * and in Miner v. Hoyt,* which was an action predicated on the Lien Law of 1830, Senators Lott and Sherman expressed the opinion that it could not be." After citing the cases under whicb a set-off was allowed, as against the contractor, under the Act of 1851, Judge Brady said : " It must be borne in mind in relation to these cases, that the Act of 1851, under which they were instituted, provided by its fifth sec- tion that ' a bill of particulars of any off-set which might be claimed should be served on the laborer, etc.,' and thus impliedly declared that the owner should be protected as to any sucb demand. There is no such provision in the Act of 1863, the word off-set is not employed in that statute, and it would seem from its general character, that it was the intention to exclude it as a defense by the owner, at least when prosecuted by a sub-contractor, whose lien attaches when the work to be done by him is commenced." In this opinion Judge F. J. Daly concurred. But Judge Cardoza dissented on the question of set-off, for the reason that in his opinion a careful examination of the case of Miner v. Hoyt will show that to be an autbority for the proposition that, under the Acts of 1830 and 1832, the owner would be entitled to be allowed for all demands he held against the builder at the time the attested account was served, provided they were such as migbt have been set-off in an action brought by the builder himself. * 7 Hill, 525. SET-OFF AND COUNTER-CLAIM. 147 THE SUBJECT OF A SET-OBF. § 131. Same. — I am decidedly in favor pf the dicta of Senators Lott and Sherman as modified by that of Judge Brady, that a set-off cannot be allowed in any of the existing statutes in this State against a sub-con- tractor, not arising out of the contract with the original contractor. Still the rule may be different except under the New York City Act, and the Act of Kings and Queens Counties ; as the other acts contain a provision in reference to the notice of set-off similar to that con- tained in the New York City Act of 1851. § 132. What Claims may be Set Ofif. — As a general rule, matters sounding in tort cannot be set off to an action for the foreclosure of a lien which is ex contractu * But negligent or fraudulent acts, or omissions which in themselves would be actionable in tort, may be, if growing out of the cause of action in contract, a proper subject for a set-off or counter-claim thereto. Thus, where the plaintiff's demand is compounded of skill and material, and he has greatly misconducted himself, as where an apothecary giving medicine on his own judgment, and not under the direction of a physician, appears to have been grossly negligent and ignorant, this fact furnishes a defense on the general issue ;f for the same reason it may be shown in defense by way of set-off in a claim by a carpenter, that the work was not well done. J * Gourdier v. Thorp, 1 E. D. Smith, 697-9 ; Steigleman v. Jef- fries, 1 Serg. and Eawle, 477 ; Cooke d. Khiue, 1 Bay(S. C), 16; Kaechlin v. Mulballow, 2 Dallas, 237. f Peak's Law of Evidence, 248. X Heck V. Spencer, 4 S. & E. , 250 ; Koon v. Greenman, 7 Wend., 13 ; Epepsly v. Bailey, 3 Porter (Ind.), 59 ; Blood v. Euos, 12 Vt., 9 ; Higgins v. Lee, 16 111., 501. 148 DEFENSES TO A LIEN. COUKTEK-CLAIM. § 133. Counter-claim.— As the distinction under the Code between a set-off or recoupment and a counter-claim affects the amount, and not the nature of the claim, it is evident that the same principles will apply to each, where personal liabilities are sought to be enforced, either in the direct or the alternative. Hence, where any defendant in a lien proceeding has a claim against any person, who therein seeks to charge him personally with a deficiency of Judgment, he may assert his claim against such plaintiff as a set-off to the extent of the plaintiff's legal demand, and ask judgment on a coun- ter-claim against him for the balance.* *See Grogan v. McMahan, 4 E. D. Smith, 754; Miner v. Hoyt, 4 Hill, 193. DEFENSES TO A LIEN. CHAPTEE VIII. WAIVER. § 134. Waiver by Express Agreement.— A party may always waive a right created by statute for his benefit,* and the Mechanics' Lien Acts do not form an exception to this rnle. The right of lien once expressly waived cannot be regained without the consent of the party to be charged therewith. Waiver arises either by express agreement, or presumptively by implication of law. When an owner of property has contracted with another to erect a building or other supersti'uc- ture, or to do any work, or furnish any materials there- for, upon the express condition that he will not en- cumber or allow the premises to be encumbered with liens on account thereof, such contractor will be deemed to have expressly waived his statutory rights, and will not be permitted by the courts to enforce a lien con- trary to the terms of his agreement. f § 135. Same — the Contractor. — Where the owner depends upon the terms of the building contract, alone, as evidence of a waiver on the part of the contractor, he must allege and prove an express covenant by him not to file or enforce the lien. A stipulation against a * Tombs V. Eocliester and Syracuse E. E. Co., 18 Barb., 583. f Mulrey v. Barrow, 11 Allen, 53. 150 DEFENSES TO A LIEN. WAIVEK BY EXPRESS AGEEEME]*rT — StJB-COKTEACTOE. lien hj sub-eontractors or others, will not prevent the contractor from enforcing a personal lien,* but it seems that a covenant by the contractor to indemnify the owner against all liens will be deemed a waiver on his part, although it will not cut off the rights of sub-con- tractors, for the owner has secured himself from the effect of their liens. Having specially provided for them he is not damaged by their enforcement. f § 136. The Sub-Contractor. — It has been held that the express stipulation against liens will affect not only the contractor, but all persons acting under him or depending upon the original contract as a basis for their liens, upon the principle that persons agreeing to furnish labor or materials to the original contractor, do so witb reference to such original contract in subordi nation to its provisions, and to the rights of the re- spective parties thereto, so far as they relate to the lia- bility of the owner of the property, or so far as they rely on such liability ; and any agreement such parties may make with such original contractor is, so far as relates to the owner or the property, subject to all the terms, agreements, conditions, and stipulations of such original contract, and the owner or the property cannot be held liable or bound to any extent beyond the terms of the original contract. Any other rule would allow the owner and his property to be completely at the mercy of the contractor, who would have the power without any authority to make contracts binding on the owner. J * Young V. Lyman, 9 Pa., 449. t Whittier V. Wilbur, 48 Cal., 175. X Bowen v. Aubrey, 22 Cal., 566. WAIVER. 151 WAIVEK BY EXPRESS AGKEEMEIJT — SUB-CONTEACTOE. § 137. Same.— There is no substantial equity in the plea by a sub-contractor of a want of knowledge of the conditions of the original contract. He knows he is not dealing with the owner, and is presumed to know that the person with whom he deals must have made a contract with the owner, since otherwise no lien could be created by him upon the property; and having knowledge of the existence of a special contract, or even, knowledge sufficient to put him on inquiry, he is considered as having notice of all the terms and con- ditions of such contract, and to have entered into his undertaking with special reference to the extent of his rights with respect thereto. It may be stated, therefore, that where the original contractor has by express agreement waived his right to file and enforce a lien upon property, neither he nor any person act- ing under him can thereafter claim or assert such a right.* Neither can the sub-contractor enforce a lien in any case where the right is repugnant to the terms of the original contract. Thus, where the original con- tract provided that the contractor should not underlet any part of the work without the written consent of the owner, and he afterwards entered into several sub- contracts without securing such consent, the Supreme Court of Connecticut held that no lien could be filed by one, who, under a sub-contract performed the origi- nal agreement according to its terms ; notwithstanding, the fact that the owner recognized him by payments on account, made during the performance of the work.f But a sub-contractor will not be deemed to have * Bowen v. Aubrey, 33 Cal., 566. t Benedict v. Danbury & Norwalk K. E. Co., 34 Conn., 330. 152 DEFENSES TO A LIEN. IMPLIED WAIVEK. waived a lien by signing as surety a bond given by the owner at the time of the sale of the prernises, and before the completion of the original contract, which provided that the premises should pass to the grantee "free from all mechanics' liens and other indebtedness of what- ever character, growing out of the completion of the same, or in any way appertaining thereto." * § 138. Waiver by Implication. — A mechanics' lien, although a security by act of law, is governed by the principles applicable to securities created by act of parties. But as it is expressly created by law for a full security to the mechanic, it ought not to be con- sidered as waived or released except by plain facts, f denoting an intention on the part of the lienor to abandon his rights under the statute, or at least such as would reasonably lead third parties to the conclu- sion that he had waived his lien-security. It is as to the parties themselves, a question of intent ; as to third parties, it is a question of fact, determinable from the peculiar circumstances of each particular case. J As to third parties, and generally, as between the parties to the lien, the existence of certain facts creates a pre- sumption of law of an intention by the claimant to Avaive his security under the statute. § 139. Additional Security. — It has invariably been held, whenever the case has fairly been presented, that the taking of other security, either on property or that of individuals not parties to the transaction, will be deemed a waiver, and have the effect to pre- * Hartman/y. Barry, 47 Mo., 666. f Hinchman v. Lybrand, 14 S. & E., 32. I Mims V. Macon, 3 Kelly (Georgia), 333. WAIVEE. 153 IMPLIED WAIVER— ADDITIONAL SECURITIES. vent the acquisition of a lien, or to discharge one already perfected.* Thus additional security by the way of a mortgage,f or a chattel mortgage,! ^^ trust deed of real estate,§ or the note or indorsement of a third party; || even though such third person be an- other member of the firm — or the firm itself — of which the owner, primarily liable for the debt, is a member, will prevent the acquisition or enforcement of a mechanics' lien. But the contract, promise, or property taken, must have been intended and accepted as collateral security, or as a guarantee for the per- formance of. the principal agreement on the part of the owner to amount to waiver. A mere promise, by a subsequent purchaser of property subject to a me- chanics' lien, in consideration of forbearance, to pay the demand secured by the lien, is not such a waiver as will operate to discharge it, ^ as it is impossible to draw any implication of an intent to waive a lien, from an act that in itself preserves the tenure of its life ; and it is held in Alabama, that the intention to waive a lien cannot be implied from the acceptance of the notes of a third person, which are given as collat- eral security under the terms and conditions of the original contract.** Such an acceptance will not, it seemsy discharge the lien, without an absolute intention * Brady v. Anderson, 24 111. , 110. f Barrows v. Baughman, 9 Mich., 213. I Kinzey v. Thomas, 38 111., 502. § Grorman v. Sagner, 23 Mo., 137. II Muir V. Cross, 10 B. Monroe (Ky.), 277. if Mervin v. Sherman, 9 Iowa, 331. •* Montandori v. Bests, 14 Ala., 33-46. 154 DEFENSES TO A LIEN. IMPLIED WAIVES — ADDITIOIfAL SEOUEITIES. can be inferred to abandon it, and look alone to the personal credit of sucli third party ; and it may be stated as a general rule of law, that the contractor who agrees to look only to the personal credit of the owner or of any other person; or the sub-contractor, mechanic, or material-man, who looks solely to the personal credit of his debtor, or of a third party, im- pliedly waives his right of lien upon the specific property which receives the benefit of his labor or, materials.* 139 a. Same.— It is a well-settled doctrine of the law, that a vendor's lien is lost by waiver, whenever he takes distinct security for the payment of the pur- chase-money, such as a pledge of goods, a deposit of stock, a mortgage on real or personal property, or the responsibility of a third person.f There is no difEer- ence in principle between such a lien and the lien of the material-man. J Both are, prior to the filing of the claim, or lis pendens, silent liens. Both are legal liens, as distinguished from those created by act of the parties, and both are founded in the Civil Law. In the Roman system, the lien of the mechanic grew out of the vendor's lien ; upon the principle that a person building a house upon the lands of another at his re- quest, was deemed to have sold it to the own§r ; re- taining his vendor's lien for the balance of the con- tract price, as in ordinary sales for the balance of the * Bailey v. Adams, 14 Wend., 301. t Nairn v. Prowse, 6 Vesey, 752 ; Gilman v. Brown, 1 Mason, 191 ; Williams v. Eoberts, 5 Ohio, 35 ; Conover v. Warren, 1 Gilm., 501 ; 4 Kent's Commentaries, 154 ^ X Kinzey v. Thomas, 28 111., 503. WAIVER. 155 IMPLIED WAITER — ADDlTIOlfAL SECUEITIES. purcliase-money. For this reason the lien of the me- chanic under the Civil Law, was enforced in the same manner, and governed by all the principles of the vendor's lien. Our having re-created the former sys- tem by express statute, cannot be deemed as changing the nature of the security, or the principles governing it, except, so far as they may have been modified by the express terms of the statute. § 140. The Contract for Security must be Performed, and the Security Accepted. — As the waiver always arises upon the presumption of an intentional aban- donment of the right of lien, it cannot be shown to exist without there is proof of some act or acquiescence on the part of the lienor. A mere conveyance of property by the debtor to a trustee to secure a mechanic for work which was neither requested or accepted by him, will not amount to a waiver.* Otherwise the debtor might force the creditor to relinquish securities held by him for his own benefit. Neither will the mere unperfected agreement to receive other security be deemed a waiver. Otherwise it would be equiva- lent to the theory that the builder must have intended to waive the lien in the event of the refusal to comply with the agreement. In equity, upon the breach of an agreement the party suffering the default is re- quired, if possible, to place the innocent party in his original position. The same principle would require that on the debtor's refusal to keep the agreement to furnish other security, the claimant should not be bound by it, but should be remitted to his original * Graham v. Bolt, 4 B. Mon., 61. 156 DEFENSES TO A LIEN. EFrBCT OF ACCEPTISra THE DEBTOE'S NOTE. rights. Thus an agreement between the claimant and owner that the former should accept the latter's note, indorsed by a responsible third party and payable in one year thereafter, does not waive or discharge the lien without the note is executed and delivered in pur- suance therewith.* Neither would an agreement to execute a mortgage in favor of the claimant, under the same circumstances amount to a waiver, for the reason that the delivery of the mortgage was a condition pre- cedent, and the agreement being executory until it was perfected, all of the obligations of the original agree- ment and all the rights ander it remained in full force.f § 141. The effect of Accepting the Debtor's Note.— It is a very well settled rule of law in England and in the leading commercial States, including New York, that the acceptance of the debtor's negotiable promis- sory note does not discharge a pre-existing indebted- ness, unless it is proven to be the express intent of the parties that it should operate as a discharge. At the most it only extends the time of payment until the maturity of the note. As it does not create an addi- tional security it follows that it does not amount to a waiver of a lien, and will not operate to discharge it without the claim itself is discharged by an acceptance of the bill or note as absolute payment. % But a nego- * Lntz V. Ey, 3 E. D. Smith, 621. t Gardner v. Hall, 29 111., 277. i Carter v. Towusend, I Clifford (U. S.), 1 ; Graham v. Holt, 4 B. Mon., 61 ; Van Court v. Bushnell, 21 HI, 634 ; Brady v. An- derson, 34 Id., 110; Odd Fellows' Hall v. Masser, 34 Penn., 507; Butts V. Cuthbertson,6 Geo., 166 ; Greene i). Ely, 3 Greene (Iowa), 508; Althause u. Warren, 3 E. D. Smith, 657; Teaz v. Chrystie, Id., 621; Miller v. Moore, 1 Id., 739. WAIVEE. . 157 EFFECT OF TKANSFEEKHiTG THE DEBTOR'S NOTE. tiable instrument being binding in the hands of an in- nocent third party against the maker, the Court will require the claimant under such circumstances to produce evidence which will furnish to the debtor an assurance that payment to the claimant in satisfaction of the lien would be a protection to him against a sub- sequent liability on account of notes given to cover the amount of the lien. The mere production of the notes at the trial and offering to give them up is not sufficient, if in the meantime a third party to whom they were previously assigned had recovered a Judgment upon them ; as the notes, being merged in the Judgment, were absolutely void.* § 142. EfiTect of a Transfer of Notes by the Lienor. — It has been held in several of the States that while the receipt of the debtor's note will not waive the right of lien upon the claim for which it was given, nor will an attempt to negotiate it, accompanied with a deliv- ery ; yet an actual negotiation and transfer of the note will destroy the right of lien, notwithstanding the claimant might subsequently become liable to the holder upon his indorsement.! This rule is founded upon the theory that the claimant, having by the trans- fer received payment in full for his claim does not re- quire a lien to enforce the original claim and, further, that having passed away to third parties that which represented his claim against the owner, he has nothing left to form the basis of a lien. On the other hand, it may well be urged that if the claimant regains the * Teaz V. Chrystie, 2 E. D. Smith, 632. t Hawley v. Ward, 4 Greeue (Iowa), 36 ; Scott v. Ward, Id. 113. 158 . DEFENSES TO A LIEK EFFECT OF TKANSFERKIIfGr THE DEBTOE'S NOTE. possession of tlie notes before the commencement of the foreclosure, he is in the same position as if they had not been transferred, and the owner should not object, as he has not suffered on account of the double ex- change. Hence, there is a dictum of the Court of Common Pleas, for the City and County of New York, to the effect that if the claimant has become repos- sessed of a note before suit, that was received on ac- count of his claim against a building, and transferred for value before its maturity, he may proceed to enforce the lien the same as if he had always retained posses- sion of it,* and this seems to be the prevailing rule upon this subject, f § 143. Same.— As the effect of a transfer still re- mains an open question in this State, it may not be amiss to note the reasoning of the Supreme Court of Kentucky, in the leading case of Graham v. Holt. Counsel contended that the negotiation of the note amounted to a waiver, although before it had been paid by the maker, the assignor had regained possession of it. This was urged both on the ground of an additional security, and that the first assignment destroyed the right of lien, which being once lost could not be regained by refunding the money to the purpose of regaining the note. As to the first point the Court held, that it would be a perversion of the statute, and of the transaction itself, to say that this responsibility of the assignor is such security as destroys the lien, or that his payment *Teaz V. Chrystie, 2 Abb., 109. t Sweet V. James, 3 E. I., 370 ; Edwards v. Derrickson, 4 Dutch. (N. J.), 39 ; Graham v. Holt, 4 B. Monroe, 61 ; Morrison v. The Laura, 4 Mo., 360. WAIVER. 159 EFFECT OF TEANSFEKEING THE DEBTOE S NOTE. to his assignee in obedience to that responsibility, should have that effect. The responsibility of the as- signor does indeed afford to the assignee a security for his reimbursement, in addition to that which the obli- gation of the maker affords, but it is a security that does not come in aid of the obligor himself nor of his indebtedness. The security which will prevent or de- stroy the lien, must be a security which is intended to come in place of the lien, and to secure payment for the materials. It is not such security as the creditor himself may furnish, in order to enable him to realize at once, by negotiating the note of his debtor, the price of his materials. As to the second point, the Court said : It was contended, however, that the statute gives the lien to the mechanics and material-men only, and that it was destroyed by the assignment of the note for the debt which it was intended to secure. This is not a legitimate conclusion from the premises stated, nor from the additional fact that the statute provides only for the enforcement of the lien by those persons to whom it is given. The question is not to whom the lien belongs, or by whom it may be asserted in case the debt be assigned, but whether it is thereby destroyed. It is immaterial whether it passes wholly to the as- signee, so that he may enforce it without even making the original creditor a party, which, however, should not be allowed ; or whether a beneficial interest in it passes, to be enforced in the name or with the assent of the original creditor as a party ; or whether it re- mains wholly in the original party, who still continues responsible for the debt, and is to be enforced only when, by again becoming the holder of the note, he is 160 DEFENSES TO A LIEN. EXTENSIOIf OF CKEDIT — BY EXPRESS CONTEACT. again tlie creditor. Were it conceded that, in conse- quence of the particular mode pointed out for, its en- forcement, it does not, as other express liens do, pass absolutely to the assignee of the debt, it would be de- priving the statute of the beneficial operation it was intended to have, to give it such construction as would prevent the mechanic from using according to the exi- gencies of his business, the debt for the security of which the lien is given,, but at the peril of losing the security. § 144. Waiver by Extending Credit beyond Statu- tory Iiimitation for Enforcement of the Lien. — A right of action being essential to the enforcement of a lien, it is evident that if the clairnant voluntarily ex- tends the term of credit beyond the time for securiag or enforcing the lien, he must be deemed to have waived his statutory rights, and to have relied alone upon the personal security of the person to whom the credit is given,* This principle is peculiarly appli- cable to the New York City Act of 1875, and such other of our statutes limiting the lien to the amount due at the time of filing the notice ; for if there is an extension beyond the time limited for filing the lien, it is evident that no sum whatever can be secured. § 145. Same — Effect of Accepting Negotiable Paper. — In the case of Miller v. Moore,f the Court of Common Pleas held, under the New York City Act of * Soudder v. Balkanl, 40 Me., 391 ; Pryor v. White, 16 B. Mon- roe (Ky.), 605 ; " The Highlander," 4 Blatch. (U. S.), 55 ; Green V. Fox, 7 Allen (Mass.), 85 ; Emerson v. Shawano City, 10 Wis., 433. t 1 E. D. Smith, 739. WAIVER 161 EXTENSION OF CREDIT — BY NOTE. 1851,* that the implied extension of credit by the ac- ceptance of a time-note only affects the enforcement of the lien, and does not affect the right to acquire it, as it may be acquired by filing the notice before it be- comes due, although the lien cannot be enforced be- fore it becomes payable. The claimants may then en- force it, unless the lien shall have then expired by the limitation which the statute has affixed to it. The same rule, in effect, was subsequently adopted in this Court, in the case of Althause v. Warren,f and of Lutz V. Ey,J and is followed in many of the other States.§ Without there is an actual agreement to ex- tend the time of payment, the execution of a note upon a matured or maturing indebtedness will not amount to an absolute extension, except for the pur- pose of suit, and in Pennsylvania the Courts treat the acceptance of a time-note for the amount of a debt as simply a change in the nature of the claim, by mak- ing it more capable of being negotiated. It does not per se extend the term of the original credit, and the creditor may waive the note, and sue upon the original claim at any time after it becomes due.|| While this rule cannot prevail in this State, it may so far affect the question of time as to allow a lien to be filed un- der acts similar to that of New York City, before the * See Part III., " Statutes." t 2 E. D. S., 657. t 3 Id., 631. § Bodley v. Deiimead, 1 W. Va., 249 ; Ashdown v. "Woods, 81 Mo., 465 ; McMurray v. Taylor, 30 Id., 263 ; Finch v. Bedding, 4 B. Men. (Ky), 87. II Hill V. Witmer, 2 Phila., 72. 162 DEFENSES TO A LIEN. SPECIAL CASES. maturity of a note, provided tliat the claim upon which it is founded is due and payable. § 146. Waiver and Estoppel— Special Gases. — It is unnecessary to treat specially of the subject of estop- pel as a defense, it being so intimately connected with that of waiver. Whenever a person acts upon the ' strength of a waiver, either express or implied, by an- other, of any specific right, the one waiving such right is estopped from afterwards asserting it, to the preju- dice of such person. The subject of estoppel as a de- fense, is therefore necessarily included to a gi'eat ex- tent in that of waiver, from which in this respect it usually springs. Thus, if a person holding a mechan- ics' lien upon property, makes such representation, or performs such acts as to induce another to pur- chase the premises, believing that the lienor does not look to the land but to other means for his payment, the principles of waiver and estoppel will both ap- ply to prohibit the claimant from setting up his right of lien to the injury of such purchaser ;* and it has generally been held, that a lienor, by uniting with the owner in the transfer of the estate charged by the lien, impliedly waives his rights therein, and the lien is destroyed, even though the conveyance is in terms made subject to all liens and encumbrances thereon.f This principle is in consonance with that adopted in the case of a Judgment-lien by the Supreme Court of Maryland, in the case of Doub v. Barnes,^ in which it is held that, where Judgment creditors assent to an • Scott V. Orbison, 21 Ark., 202. t Alexander v. Slavens, 7 B. Monroe (Ky.), 356. X 4 Gill (Md.), 1. WAIVER 163 SPECIAL OASES. assignment by the debtor to trustees, for the payment of his debts according to their legal priorities, and sub- sequently induce, by their conduct, a third party to purchase the real estate charged with the judgment liens, believing that they will look to the general fund held by the trustees, and not to their specific interest in such realty for their payment, they will be deemed to have waived their specific liens, and estopped from enforcing them by a sale of such demised premises ; the purchaser acquiring by their conduct a valid equi- table defense thereto. The same principle applies in respect to a particular charging lien upon personal property. Thus, the acceptance by one having a specif- ic lien upon certain funds, of an order thereon payable to a third party, is a waiver of his right therein, at least to the extent of such acceptance.* * Tiernan v. Jackson, 5 Pet. (U. S.), 580. DEFEI^SES TO A LIEN. CHAPTER IX. MERGER. § 147. Intimately connected with tlie subject of waiver is that of merger. "Whenever a superior or additional security is taken, the doctrine of waiver applies so as to extinguish the original security; so whenever a greater and a less estate coincide in the same person without any intermediate estate, or a superior contract, debt, or cause of action is accepted for an inferior one, there is a merger, and the lesser estate or credit being swallowed up in the superior one, is absolutely extinguished.* § 148. Merger Affects the Debt only.— In respect td mechanics' liens, this important distinction must be observed ; waiver affects the security, while merger affects the debt. Thus, where a bond, which is a specialty contract, is given for the claim of the mechanic, or a Judgment, which is a contract of record, is rendered thereon, there is a merger and extinguishment * See Eoberts ads. Jackson, 1 "Wend., 478 ; James v. Moray, 2 CWen, 246. MERGER. 165 EFPECT OF MERGER UPOIT THE DEBT. of the debt ; but is the lien, which is a security for the debt, also extinguished ? Where the original debt is extinguished by payment, the secui'ity, existing only as its incident, is also extinguished. Whether its extin- guishment by merger will so affect it, will depend ■upon the piinciples governing the doctrine of merger, and the relations borne by a mechanics' lien to the debt itself. The general rule is, that by a judgment or a decree in chancery, the contract or instrument upon which the proceeding is based becomes entirely merged in the Judgment. By virtue of the Judgment of the Court it loses all its vitality, and ceases to bind the parties to its execution. Its force and effect is then expended, and all remaining legal liability is transferred to the Judgment or decree. Once becom- ing merged in the Judgment, no further action at law or suit in equity can be maintained on the instrument ; and all rights and liabilities originally imposed by, or growing out of it, terminate with the rendition of the Judgment.* The original debt is " drowned in *the Judgment," and must henceforth be regarded a& functus officio. \ § 149. Same. — But it must be borne in mind that the debt and the security are each distinct and sepa- rate in their nature. The prosecution of the note or bond of a third party, held as collateral security, does not affect the principal debt, and a Judgment recovered thereon cannot merge or discharge the original indebt- edness. The debt being independent of the security, * Wayman v. Cochrane, 35 111., 153 ; Hogg v. Charlton, ■ 35 Penn. St., 300 ; Freeman on Judgments, page 181. . t Id. Biddleson v. Whitel, 1 W. Black, 607. 166 DEFENSES TO A LIEN. EFFECT OF MEKGEE TJPOK THE LIEN. is not affected by sucli judgment, whicli is simply the same security in another and higher form,* § 150. The Converse Rule, that the recovery of Judgment upon the original indebtedness will not merge or affect the security, has also been held to be true. A mortgage given for the payment of a bond is only incident to the bonded debt,-)" and can only exist and draw aliment from the debt to which it is incident ; but it is not so intimately connected with the principal debt as to be acted upon by the law of merger, when such debt is transformed into a judgment. It simply changes the relation of the security, which becomes a security for a Judgment in- stead of for a simple or specialty debt.J In other words, although the identity of the original claim is lost, its cotemporaneous incidents are preserved. The appurtenant securities following the claim through its transformation attaches itself to that which represents it. And this, although, in the case of a mechanics' lien, the very essence of its creation, the beneficial work upon real estate, is extinguished by the judgment of the, Court, which forms a new contract by act of law, * Drake v. Mitchell, 3 East., 251 ; Bank of Chenango v. Hyde, 4 Cowen, 567 ; Butler v. Miller, 5 Denio, 159 ; Davis v. Anable, 3 Hill, 339; Day v. Leal, 14 Johns., 404 ; Chipman v. Martin, 13 Id., 240; U. S. v. Hoyt, 1 Blatchf., 326; and see to the same effect in the case of a mortgage held as security, Hoyt v. Mar-, tense, 16 N. Y. ; sed contra, Ayerhill v. Loucks, 6 Barb., 19 ; Benson v. Paine, 17 How*, 407, and Peters v. Sanford, 1 Den., 334. t Vansant v. AUmon, 33 III, 30; Olds v. Cumraings, 31 Id., 188. I Per Chief Justice Walker in Wayman v. Cochrane, 35 111., 153. MERGER. 167 EFFECT OF MEEGEK UPOK THE LIEN. without any of the peculiar qualities of the original one. § 151. Saxae — Reasons for this Rule. — There are two controlling reasons why a mechanic's lien will not be destroyed by the entry of a judgment. First, be- cause there is merger of the claim and not of the securi- ty ; Second, because it is not the acceptance of a higher security. The first we have already considered ; the second is fully set forth by the Supreme Court of Pennsylvania, in the case of John Thompson,* substan- tially as follows : Whenever the law works an extin- guishment the creditor has gained a higher security; the thing substituted is more beneficial to the creditor than the thing originally contracted for. Now, the debts of the mechanic or material-man were originally simple contract debts, but for their security the act has created a lien on the building; so that the security which the creditors have in relation to the safety of the debts rank with that of a judgment or mortgage. Therefore the acceptance of a bond and warrant of attorney, and the entering of a judgment on the bond, is not a waiver or extinguishment of a mechanic's lien. § 152. In this State the question of merger in the case of a mechanic's lien has not been considered by the courts; there is, however, a dicta in the case of Teaz V. ChrystiQ,f to the effect that where judgment has been recovered by a third party upon notes given * See to the same effect Schanck v. Arrowsmith. 3 Browne, 397. 1 Stoctt. (]Sr. J.), 314, and Crean v. McFee, 3 Miles (Penn. ), 314. t 3 Abb., 109. 168 DEFENSES TO A LIEN. EFFECT OF MEEGBK UPON THE LIEIST. to the mechanic by the owner and assigned to such third party, that if the judgment was re-transferred to the claimant before the commencement of the fore- closure, he might enforce a mechanic's lien founded upon the original claim. In that case the judgment was recovered and the notes upon which it was based were surrendered to the claimant and tendered to the Court for cancellation in the foreclosure suit ; the Court held that the notes having merged in the judgment were void, and that it would be necessary for the claimant to first have possession of the judgment repre- senting the original debt. § 153. The Judgment Represents the Original Debt. — The principles of merger require, where a judg- ment has been recovered upon the debt of the claimant in a personal action, and the lien is subsequently fore- closed, that the amount of the lien must be limited to the amount of the judgment, since it is a security for the judgment and not the original claim merged in it. Thus, where a bond bringing ten per cent, interest was merged in a judgment thereon which by law only car- ries seven per cent., the Court held that upon the sub- sequent enforcement of the mortgage given to secure the bond, the judgment and interest thereon at seven per cent, was the amount for which the mortgage was enforceable. The bond having been extinguished, the rate of interest connected with it was also extinguished. As a judgment is a lien upon all the real estate of the debtor, the only effect of a subsequent j udgment upon the special lien of the mechanic is to antedate that of the judgment, as of the .time of filing the claim. § 154. Personal Judgment.— After the recovery of MEEGER 169 EFFECT OF MEKGEK UPON THE LIEIT. a personal judgment upon a lien claim it is doubtful whether personal liahilities can be enforced in the sub- sequent lien proceeding. The foreclosure of a lien is now becoming a proceeding in personam as well as in rem. Hence, if in such a case the complaint asked for a judgment for deficiency against the party personally liable, the defendant might well set up the former judgment in bar. Otherwise there would be double judgments for the same cause of action. The most that can be done under such circumstances is to enforce the lien against the property charged therewith, then the amount received therefrom will be deducted from the original judgment, as the receipts from its security, and the balance remaining due thereon may be then enforced against the general estate of the debtor. DEFENSES TO A LIEN. CHAPTER X, SPECIAL DEFENSES. § 155. The Loss or Destruction of the Buildings Affected by the Lien.— The mecliaiiics' lien is by spe- cific terms a charge upon the building or structure into which the labor or material enters, and the lot of land on which the same stands. As the land itself /is encumbered, it would seem that the destruction of the building would not affect the validity of the lien, but that the same might be enforced upon the realty covered by it : and this view seems to be adopted in Illinois, where it has been held that the lien continues against the land, although the entire materials, build- ings, and improvements, on account of which the lien accrued, be removed, rendered worthless, or destroyed by accident ; * for the reason that the position of the rights of the parties once being fixed and determined by a compliance with the statute, it would not after- wards become defeated by accident or the act of the owner. It being upon the freehold and upon the structure, the severance of the structure from the free- hold would not affect the rights of the parties. It * Gaty V. Casey, 15 111., 133 ; Steigleman v. McBride, It Id., 301. SPECIAL DEFENSES. 171 LOSS OF THE BUILDING. does not follow the structure from place to place, but continues upon the lot. If, however, the structure is wrongfully removed from the plot on which it was erected, and sold for cash, the claimant may also fol- low it, as the lien will not be destroyed by the act of the owner or of an irresponsible third person. § 156. Same— The Pennsylvania Rule is, however, different. Their courts holding that, although the lien attaches to the soil as long as it is connected with the structure, the severance and the destruction of the building by fire or otherwise works a destruction of the lien ; for the lien originates with the building, depends upon it for existence, and must necessarily share its fate. No amount of labor or materials fur- nished for the erection of a building would create a building if no building should be erected. So, if the building, after erection, should be destroyed by accident before the ground on which it stood passed to a purchaser, the lien would be gone. The reason for binding the land is gone with the building. Any other construction would defeat one of the objects of the law, which was to promote the improvement of the country by encouraging mechanics and material- men to furnish labor and materials for erecting build- ings. But, if the lien continue on the land after the improvement is destroyed, how are those who erect the new building on the premises to be protected ? Their equity against it is undoubtedly superior to the claims upon the building that was destroyed. Under such a rule, all further improvement on the premises might be prevented; and, therefore, if the building for which the materials were furnished, or labor done, 172 DEFENSES TO A LIEN. LOSS OB THE BUILDIN'G. be consumed before a mechanics' lien is filed, the ground upon which such building was erected, and all future buildings upon it, are discharged from such lien. § 157. Same.— A mechanic having an insurable interest in the building,* should, to prevent any pos- sible loss, protect himself by taking a builder's risk thereon; having failed 'to do this, his lien, in the case of a fire virtually destroying the main building into which his work has entered, will neither extend to the lot nor to appurtenant erections connected with the principal structure, nor to the materials saved from the fire. The lien having attached to the main build- ing primarily, and to the lot and its appurtenances only incidentally, as an adjunct or incident to such structure, and necessary to its proper use and enjoy- ment, the lien is entirely lost by its destruction.! Whatever we may think of the hardship of such a rule, we must not forget that mechanics are clothed with special privileges and preferences, to the destruc- tion of that equality in which equity delights, and that, not so much on the ground perhaps of their being a more meritorious class, as because the growth and im- provement of the country is supposed to be promoted thereby. Being a privileged class, they may be enti- tled to a liberal construction of the law in their favor, especially in matters of form or mere technicalities; but although entitled to a liberal, they have no right to a latitudinarian construction, embracing matters * Protection Ins. Co. v. Hall, 15 B. Mon., 411. t Wigton & Brooks' Appeal, 28 Penn. St., 163. SPECIAL DEFENSES. 173 LOSS OF THE- BUILDING. neitlier within the letter or the spirit of the law. In an absolute sense, it is just as hard for the creditor, who advances the funds for the erection of the build- ing, to lose his money, as for the man who puts into it his labor or material ; and apart from positive law, he has an equal right to paramount claim. If postponed on principles of public policy, the preference should cease when the policy, and from that moment should be the other way ; for if the original claims still remained liens on the reconstructed building, then so far as improvements depend on privileged liens, they would be arrested or greatly impeded, instead of being promoted.* § 158. Same. — ^The Pennsylvania rule was recog- nized in the dicta of the Court in New Jersey, in the case of Coddington v. Dry Dock Co.,f wherein it was sought to charge a lien upon a floating dock at- tached to the land, but built elsewhere in sections, and floated to the location intended for its permanent resting-place. The Court refused to sustain the lien for the reason that the act only intended to create a lien upon land, or what in construction of law is land, and not on merely movable property. It did not in- tend to give a lien upon labor not performed upon the land upon which it is to be a lien, nor on materials be- fore they were made land. As soon as the materials were converted into land, then the land was seized by the lien by reason of the building, and the building was seized by reason of the land, and from thence it follows, that if the land and the building by any * Wigton & Brooks' Appeal, 38 Penn. St., 163. t 2 Vroom, 477. 174 DEFENSES TO A LIEN. LOSS OF THE BUILDUSTG. chance become separated the lien is lost upon both ;' the land, because it has lost the building and the in- creased value given to it ; and the building, because it is separated from the land. § 159. Same — Under the Roman System the pref- erence of the architects, undertakers, and workmen, and of the person furnishing money, upon the im- provements created by their aid, is restricted to what remains of them in being, and does not affect the whole body of the estate, as does the preference on account of repairs which have preserved the. whole estate in being. For if there remains nothing of the improvements, the estate not being anything the bet- ter for them, and nobody profiting by them, there re- mains no longer any cause for preference, and when some of the improvements do subsist, the privilege (lien) only applies to the value of what remains. Quasi pignus retinere potest earn rem* § 160. Same— In this State the question has never been specifically raised. I agree with Houck, that equity favors the Pennsylvania rule ; or at least, that the balance of equities are with it ; and that in case of a destruction of the building by act of God, the pub- lic enemy, or by accident, or whenever its use as a building has become entirely lost, without any negli- gence on the part of either parties, the lien itself is gone. But that whenever the building is removed by the owner, he should be estopped from setting up that fact as a defense to the lien. I cannot see how, in such a case, the existence of a mechanics' lien would be any * L. 13, § 8, D. de aut. empt. et vend. ; Domat's Ciyil Law, Part 1, Book III., Tit. 1, Sec, V. SPECIAL DEFENSES. 175 OTEK-STATEMBNT OF ACCOUNT. more prejudicial to the rights of contractors subse- quently erecting a building upon the same plot of ground, than would a mortage given by the owner thereon, for his indebtedness in the construction of the first building. The filing of a lien produces as ample a notice as the recording of a mortgage. § 161. Over-Statement of Claimant's Account. — Nearly every Mechanics' Lien Act contains a clause requiring that the claimant shall file a notice of lien within a specified time, which notice shall contain a just and true account of the plaintiff's claim alt^v die- ducting all payments therefrom. What is the effect of the non-performance of the requirements of the statute in respect to the amount of the plaintiff's claim ? Will it, in case he has filed a claim for more than is justly his due, deprive him of a lien for what is actually due, for the reason that he has not fulfilled the strict requirements of the statute ; or will it sim- ply give the owner the right to reduce his claim to the amount actually due ? This question has been differ- ently answered in different States, and has not been considered in our Courts. § 162. The Missouri Rule — EjGFect of Omitting kno-wn Credit. — In Missouri, a rigid rule of construction is followed, which defeats the lien entirely if the claim has materially overstated the amount of the lien, for the reason that if any variance is allowed, the me- chanic or material-man may omit to give the proper credit for a large as well as a small amount, and the owner thereby prevented from disposing of his prop- erty on account of an apparent lien, which, had it been correctly stated in amount, would not have been 176 DEFENSES TO A LIEN. OVER-STATEMENT OE ACOOUifT. ohjectionable. So also, the owner, to reduce it to tlie proper amount, may be forced into a protracted litiga- tion at great cost and expense, and also prevented for an indefinite period from obtaining tbe market value of Bis property. When, therefore, to prevent such dis- astrous consequences, the Legislature has required a statement under oath or otherwise, of the actual amount of the claimant's account, it seems but just that he should so state it, under the peril of an entire forfeiture for non-fulfillment of the statutory require- ments. Hence, where the amount of the claim filed was one thousand seven hundred and seventy-one dol- lars, and it was admitted that a payment of one hun- dred and sixty dollars had been omitted, it was held that the lien was entirely lo^t.* § 163. Deductions from the Nature of the Lien. — The mechanics' lien is purely a creature of the statute. It is an extraordinary remedy, and he who seeks to avail himself of it must strictly comply with its con- ditions.f The statute points out a certain mode and manner of proceeding, and if that mode and manner is not pursued the remedy cannot exist. It requires that all just credits shall be given ; that the property shall be accurately described, so that it can be identified in applying the lien; that the lien must be filed within a specified time; and that the name of the owner or con- tractor, or both, if known, shall be inserted. These, all taken together, make up the constituent or compo- nent parts necessary to give validity to the lien. And there is no authority for the omission of any one of * Hoffman v. Walton, 36 Mo., 613. t Benton v. Wickwire, 54 K Y., 739. SPECIAL DEFENSES. 177 OVEE-STATEMENT OF ACCOUNT. those constituents, nor for considering any one more vital to the existence of a lien than any of the others. It has been always held in this State that the failure to file a claim within the specified time will bar a lien,* and also that the name of the contractor or debtor should be correctly stated,f and that the premises should be properly described in the notice of lien.J In default of any of these requisites the lien is held to be invalid. It is difficult to draw a line between an omission or mis-statement in any of these respects and an over-statement of the plaintiff's claim by the will, ful omission in his bill of particulars of one or more credits. It is not a sufficient answer to say that the de- fendant is not injured thereby, as he has the power to reduce the amount on trial by showing that such pay- ments have been made. Otherwise the statute would create a special privilege in favor, of a certain class of debtors, and also empower them to either force the cred- itor to an expensive litigation or submit to the enforce- ment of an unjust claim against him, and in the mean- time, to charge his property with a fictitious encumbrance. § 164. Same — In Massachusetts the courts have held that the omission of a credit destroys the lien without regard to the intention of the claimant. Thus, under a law providing that the lien shall be dissolved unless the person seeking to avail himself of it files within sixty days with the Register of Deeds " a cer- tificate containing a just and true account of the de^ mand justly due to him, after all Just credits given," * Spencer v. Barnett, 35 N. Y., 94 t See Hubbell v. Schreyer, 14 Abb., 284 J Donnelly v. Libby, 1 Sweeney, 259. 12 178 DEFENSES TO A LIEK OVBK-STATBMENT OF ACCOUN'T. that the amount of all just credits was a fact within the petitioner's own knowledge, and that he was bound to state it truly. When, therefore, the notice filed stated the work at day's work to amount to twenty-four dollars and six cents, and the credit to be one dollar, and the evidence showed that five dollars had been paid on account, the Supreme Coiirt reversed a judgment, for the reason that by a non-performance with the terms of the statute the claimant had forfeited his entire lien. " If the owner of the land," said the Court, " had paid the amount thus stated, he would have lost four dollars upon settling with his contractor." * The authority of this decision has not since been questioned in that State. To meet the apparent hardship of this rule the lien law was subsequently amended by the insertion of the provision that " no inaccuracy in stat- ing the amount due for labor, shall invalidate the pro- ceedings, unless it shall appear that the person filing the cei'tificate has willfully and knowingly claimed more than his due." I have been unable to find a de- cision in any of the American courts holding the direct converse of the rule as established in Missouri and Massachusetts, as to the effect of an omission of credits under similar provisions of law, except the case of Heamanni>. Porter,f which was practically over- ruled in the later case of Hoffman v. Walton. { The case of Busfield v. Wheeler,§ cited by Phillips | to * Lynch v. Cronan, 73 Mass. (6 Gray), 531. t 35 Mo., 137. t 36 Id., 613. § 13 Gray. II Phillips on Mechanics' Liens, § 356. 7 SPECIAL DEFENSES. 179 OYBK-STATEMBNT OB ACCOUNT. show tliat the lien will not be defeated by the state- ment of too latge a sum honestly demanded, was an action upon a personal retaining lien on machinery, the Court expressly stating that the rule in the case of mechanics' liens, requiring an accurate statement, was not applicable in that proceeding. So the later case of Whitney v. Joslin * was decided under the amended statutory provision, quoted Supra, the Court holding simply that the lien would not be invalidated by a statement which included a non-lien claim, where made in good faith and the whole amount was actually due, though not lienable. So, in Connecticut, a statement of notes representing the value of the labor and ac- crued interest thereon,-|- will not invalidate the lien. § 165. Same — Effect of Over-stating the Debits. — I am satisfied, from a careful reading of the decisions, that only intentional misstatements of the amount of the claim ought to avoid the lien. Such statements as would hold the claimant liable for willful perjury in the verification of the claim come particularly within the rule. Hence, a misstatement of the amount of credits, which must be supposed, ordinarily, to be within the knowledge of the person receiving the money, is more open to criticism than a statement of the value of services or materials, without they are rendered under an express contract at a certain fixed price pre-arranged between the parties. Where the claim is unliquidated, and incapable of being liquidated by a mere mental computation, a wide discretion is given to the estimate * 108 Mass., 139. f Hopkins v. Forrester, 39 Conn., 351. 180 DEFENSES TO A LIEN. OVER-STATEMENT OF ACCOUNT. of the creditor of the value of his ovp^n services or ma- terials ; although he vrill be held lia-ble to its gross abuse. The essence of the defeasance is fraud, gross negligence, or Avillful misrepresentations, combined w^ith the non-performance of the requirements of the statute. The over-statement unintentionally of the value of the work performed by the mechanic ought not to avoid a lien for the true value.* But where it is shown not only from the size and character of the building, but from the books of the claimant, that the amount of materials charged in the lien statement could not possibly have been used in the building, and that it was the result of either fraud or gross negligence to have furnished the amount called for on account of the building charged by the lien, the court may con- demn the entire transaction as fraudulent and void. It is not safe to assert that a trifling excess over what rigid economy would require for the erection of the structure will vitiate the account, as that would be a construction both unnecessary and unjust ; but where it is obvious that it is the result of either gross negli- gence, willful perversion, or fraud, sound policy and a just regard to the interest of the ovraer requires that the consequences should be visited on his own head.f § 166. Effect of Bankruptcy or Insolvency as a De- fense. — After the lien has, in good faith, been per- fected by the filing of the notice, no proceeding either by the debtor or by third parties, can, as against the claimant, affect the specific lien in the property Underwood, v. Walcott, 3 Allen (Mass.), 569. f Dickinson College v. Church, 1 "Watts & Serg., 466. SPECIAL DEFENSES. 181 BANKECPTOY OK INSOLVENCY. charged thereby. Justice Story invariably held, un- der the Bankrupt Act of 1841, that an adjudication in bankruptcy superseded and destroyed all prior attach- ments levied within a certain time prior to the filing of the petition.* This position, except in Louisi- ana,f has been strenuously rebutted by the courts in this country, oij the ground that an attachment creates an existing lien which cannot be dissolved by an act of bankruptcy on the part of the defendant.^ But under the Bankrupt Act of 1867, as amended in 1874, the assignment of the bankrupt's effects operates as a dissolution of any attachment of his property made within six months next preceding the commencement of the proceedings in bankruptcy. In the leading case of Foster v. Heirs of Stone, § arising under the applica- tion of a mechanic's lien to the estate of a decedent, the Court pointed out the distinction between a me- chanic's lien and a lien created by attachment, which has since been accepted and followed in the Bankruptcy Courts, to the effect that the security given by statute to the mechanics and material-men, is not like that of an attaching creditor, obnoxious to the letter, spirit, and policy of the Bankrupt Act, because it works no injustice to any creditor. An attaching creditor has no claim for preference over other creditors, except by * Foster's Case, % Story, 131 ; Bello(¥S and Peck's Case, 3 Id., 428. f Fisher v. Eobinson, 3 La., 457. i Downer v. Brackett, 31 Vt., 599; Eowell's Case, Id., 630; Haughtoa v. Eustis, 5 Law Eeporter, 505; Franklin Bank v. Batchelder, 33 Me., 60; Kittredge v. Warren, 14 N. H., 509; Davenport v. Tilton, 10 Met., 330. § 30 Pick., 540. 182 DEFENSES TO A LIEN. BANKRUPTCY OE HfSOLVBNCT. his attachment ; whereas, when a mechanic obtains a lien under the statute, and, relying upon it, increases the value of the land by erecting buildings thereon, he has a strong equitable claim for reimbursement, to the extent of the value of his labor or materials furnished for the building, and in this respect he has a marked preference over the other creditors, who have trusted to the personal credit of their debtor. § 167. Same. — "The operation of the law," says the Court, In re Coulter,* " is a convenient substitute for the giving of a mortgage or other express security, day by day, for the value of such work and materials, and is to be considered and enforced as such. Upon the faith of this security so given, the one party furnishes labor and material, and the other secures the benefit of them. This transaction is not in violation of the term or policy of the Bankrupt Act, even although the owner of the property should be insolvent at the time j because such security or lien is only equivalent to the additional value which the creditor has by this means given to the property of the debtor, and, therefore, does not diminish the assets of the latter, applicable to the payment of his pre-existing debts; like advances made in good faith to an indebted person, to enable him to carry on his business, upon security taken at the time, which do not violate either the terms or policy of the Bankrupt Act, since the debtor gets a present equivalent for the new debt he creates and the security he gives. Accordingly, if the law secure the lien to the mechanic or material-man from the doing * 5 National Bank. E., 64. SPECIAL DEFENSES. 183 BANKEUPTCT AND INSOLVENCY. of the work, or the furnishing the materials, and it attaches to the building from that time, upon the con- dition subsequent that the lien creditor file a notice of his intention to hold such lien within a certain period from the completion of the building, the commence- ment of proceedings in bankruptcy, between the doing of the work or furnishing of materials, and the filing of such notice, does not impair or affect the lien, or the right of the lien creditor to continue it by filing the notice. The lien existed under the Mechanics' Act, prior to the commencement of proceedings, and the right under such circumstances is preserved by the Bankrupt Law." § 168. Adjudication in Bankruptcy. — There is no doubt, therefore, that subsequent acts of bankruptcy, or a subsequent adjudication, will not invalidate a mechanic's lien, but it would undoubtedly affect the specific claim of a mechanic if the adjudication pre- ceded the formation of a lien under it. If the lien attaches by virtue of the work done or materials fur- nished from the time of the commencement of the la- bor, or when the materials commenced to be furnished, as it does in most of the States, bankruptcy proceed* ings will not affect the rights of the claimant at the time of the filing of the petition, except to stay all proceedings on his lien ; and the notice of lien may be filed thereafter, and the necessary acts may be taken to preserve, but not enforce the lien, as such acts can- not be deemed encroachments upon the authority of the Bankruptcy Court.* * Clifton V. Poster, 3 National B. E., 163 ; Keller v. Denmead, 68 Penn., 449. DEFENSES TO A LIEN. BANKKUPTCY AND INSOLVENCY. § 169. The Rule -where the Iiien is created by gling the Notice.— Under the Mechanic's Lien Statute of Michigan, providing that " Such lien shall not at- tach, unless the said contractor or some one in his be- half shall make and file vpith the Register of Deeds of the county in which the lands shall lie, a certificate," etc., and provided " that no' lien created by virtue of this act shall be binding upon the owner, part owner, or lessee, until he shall have been notified of the filing of such lien with the Register of Deeds," the Court in Bankruptcy held that where proceedings " to attach " the lien had not been consummated by fil- ing the required notice previous to the commencement of proceedings in bankiuptcy, that the lien could not be considered as constituting a secured claim.* Jn all cases where the lien is acquired by virtue of fil- ing the notice, a prior adjudication takes preced- ence, and the property passes to the assignee free from the claims of the mechanics or material-men.f Applying this rule here, if the notice is filed prior to filing the petition in bankruptcy the mechanic may retain and enforce his lien; but, except under the New York City Act, the right to a lien will be cut off by an adjudication before the notice is filed. The lien only attaches to the interest of the owner at the time of the filing of the lien. If his property is pre- viously vested in the Court or an assignee, he has no interest, and the lien cannot attach. I think, however, that under the present act in New York City, a peti- * In re Sabin, 12 National B. E., 143. t In re Dey, 3 National B. K., 81. SPECIAL DEFENSES. 185 BANKRUPTCY AND INSOLVENCY. tion filed after the work is commenced will not pre- vent tlie mechanic from acquiring and enforcing a lien for the amount of labor then performed or materials then furnished. But no claim will be allowed for work done after the petition is filed,* and the amount required to complete the contract should, in such a case, be deducted. * In re Cook, 3 Biss., 123. PART II. OF THE PEEPEOTION AND ENFOEOEMEl^T OE A LIEN". THE PERFECTION OF A LIEN. CHAPTER XI. THE TIME FOE FILING THE STOTICE. § 170. — The Legislature has given mechanics and material-men the right to a lien. They have not pre- sented to them a security already perfected for their labor or materials, but have said " You may have a lien, provided you conform to the terms of the statute. You must, within a limited period from the completion of your contract, or of the contract to which you have contributed your services or goods, file a notice in the clerk's office in the manner and form prescribed by the statute." The claim being filed and proceedings insti- tuted, the lien is secure, and unless its duration is specially limited by the act creating it, it will continue on the property as long as it may be litigated.* But unless the claim is filed within the specified period, the statutory rights will be defeated, ahd the claim- ant will be restricted to the common law rights of other creditors.-^ This requirement being a jurisdic- * Sweeney v. McGitfcigan, 20 Penii. St., 320. t Hubbell V. Schreyer, 14 Abb., N". S., 284; Hilliard v. Allen, 4 Cusb. (Mass.), 536 ; Mulloy v. Lawrence, 31 Mo., 585. 190 THE PEEFECTION OF A LIEK COMMENCEMENT OF LIMITATION. tiojQal one, must be fully complied wifcli to secure a lien.* § 171. When Ijimitation Commences. — It is very easy to ascertain the abstract period of limitation, as it is prescribed by every statute. It is a specified number of days — ^usually thirty, sixty, or ninety from the performance of the labor or furnishing of the ma- terials for vphich the lien is sought, or from the com- pletion of the building, or of the original contract. If, therefore, the commencement of this period can be determined, the limited time is a mere matter of com- putation. § 172. Under the New York City Act. — Where the period commences from the completion of the building or of the original contract, the subject is re- lieved from much of its perplexities, since the contract itself, which designates the work to be done, will usu- ally be a correct guide to the time of its completion. It will be completed upon the fulfillment of all its terms and conditions. When the contractor has a right to demand the money payable upon the performance of his agreement, his right to file a lien commences to run. And here, through accident or design, the New York City Lien Act of 1875 is rendered more simple than that of 1863, The former Act required the claim- ant to file the lien " at any time before the whole work is completed, and within three months after the work is done or the materials furnished for which a lien is sought," If the sentence stopped short at the word * Doughty V. Devlin, 1 E. D. Smith, 625 ; Donaldson v. O'Con- nor, Id., '695; Lutz v. By, 3 Id., 621 ; Hanptman v. Catlin, 30 N. Y., 247 ; Spencer v. Barnett, 35 N. Y., 94. TIME FOR FILING THE NOTICE. 191 UKDER THE NEW YORK CITY ACT. " completed " it would only have been necessary to have ascertained when the entire work was finished. By substituting the word " or " instead of " and," the claimant is now in as good condition as if the first clause only was used ; as the limitation commences at the " completion of the building, impi'ovement, or structure," or of " the alteration or repair thereof," if the claimant so elects. § 173. Same. — It may be contended, in opposition to this view, that the word " and " may be construed as meaning " or," and vice versa, where it is evident that it was so intended by the persons employing it. Such a construction, if made applicable here, would harmonize the acts of 1863 and 1875 in this respect. But this rule has only been adopted in the case of contracts. It has never, to my knowledge, been applied to the construc- tion of a statute granting a remedy unknown to the common law. Furthermore, there is no patent inten- tion on the part of the lawgivers to model the statute, in this particular, after that of 1863. No such inten- tion can be presumed for the purpose of altering or changing the express terms of the statute. This posi- tion is not without authority. The question arose in the case of the Okisko Co. v. Matthews,* under a sim- ilar clause in the Maryland Statutes, in which their Supreme Court said : " And besides, the lien is preserved until six months after the materials are furnished, oe after the comple- tion of the work. If this instruction had been given the Jury would have been authorized to find against * 3 Md., 168. 192 THE PERFECTION OF A LIEN. UlfDER THE NEW TOEK CITY ACT. the claimant, if the goods had been delivered more than six months, although the particular house on which these materials were used may have been com- pleted within that time. To be sure it was in evidence that all the houses had been completed for more than six months, except one, and it is probable that the jury would have so found ; but that is no reason for the courts -taking that question from their consideration. The prayer should have been so iramed, as to have pre- sented hotJi alternatives to the jury." * § 174. Same.— It is, without doubt, the intention of the statute that the claimant should have the entire period of limitation in which he may file a lien. The statute reads, " at any time within " the specified period. It follows, therefore, and may be laid down as an in- variable rule, that the limitation does not commence until the claimant has secured the right to file an effective lien, without he has waived the right by giving credit. As a consequent to this rule, it may be added, where, as in New York City, a lien is invalid without there is a payment due to the. claimant at the time of filing the lien, that the limitation does not commence to run until the liability to pay the claimant for his work or materials, or for some portion thereof, has become perfected so that nothing but a term of credit, entered into between the parties, will prevent the immediate enforcement of a personal action thereon. The giving of a credit does not extend the time for filing a lien ; the time may commence to run, therefore, upon the completion of the work, whether a payment * See also Charleston Ins, Co. v. Corner, 3 Gill, 410. TIME FOE FILING THE NOTICE. 193 DISTINCT CO]«rTRACTS OR REQUESTS. is then due or not, since the claimant might then have filed an effective lien had he not extended the time of payment beyond the time vphen it naturally fell due. The converse of this rule vrill not always hold true, since an action may be maintained for each installment due upon an entire contract for the erection of a build- ing while the period of limitation does not commence until the building is completed ; with this exception, the converse rule will also hold true, and may be thus stated : The limitation will commence to run for mate- rials furnished and services rendered on every distinct contract or separate order upon the completion thereof. § 175. Distinct Contracts or Requests. — Every dis- tinct contract must stand on its own merits, and the lien must be filed upon each one within the limited period after its completion.* The only difficulty arises from the application of this principle, that is to decide whether the materials were furnished under a separate contract or formed part of a continuous or entire con- tract. A mere general agreement to pay for " such materials as thereafter should be furnished " cannot be construed as such an entire contract as to connect the materials separately ordered and delivered in pursu- ance therewith. Each order forms a separate and distinct contract, although founded upon a general contract.-)- And it may be stated as a general rule that demands arising out of separate sales constitute inde- * Livermore v. Wright, 33 Mo., 31 ; Sweet v. James, 2 E. I., 370. f Hubbell V. Schreyer, 14 Abb., 384 (reyersed in the Court of Appeals, but not on this point) ; Downing v. Kemp, 4 Sand. , 147; Spencer v. Barnet, 35 N. Y., .94. 13 194 THE PEKFECTION OF A LIEN. DISTINCT •COifTEAOTS OR EEQUESTS. pendent contracts,* unless a contract, either express or implied, so embraces all the items as to form them into a single or entire demand.^ A lien under a second contract will not cover, so as to bring it within the statutory limitation, work done under a former super- seded contract for the erection of the same building.J Nor can the separate accounts of two or more claimants be tacked together so as to make one continuous ac- count or contract ; the lien for each must be filed with- in the statutory period. § § 176. Spencer v. Barnet|| being the only case wherein the question of time has been fairly pre- sented and passed upon by the Court of Appeals, is considered a leading case on this point. Unfortunately the lower Courts have widely differed as to the princi- ples actually established in this case. Many seem to con- sider it as an authority for the proposition that a lien filed by a material-man, under an entire contract, will only cover the goods furnished within the statutory period. A careful reading of the opinion will show that this proposition is too general. All that case really holds is, that in an action to enforce a lien for materials, founded upon the value of the materials and not upon the contract^ the lien can only be enforced to the extent of the materials furnished within the statutory period. This comes within the principle hereinbefore stated, that whenever an action can be * Cashman v. Bean, 2 Hilton, 340. t Secor V. Stnrgis, 16 N. Y., 548. X Ooclieco Bank v. Berry, 53 Me., 293. § Hazard Powder Co. v. Loomis, 2 Disney (Ohio), 544. II 35 N. Y., 94. TIME FOE FILING THE NOTICE. 195 THE EULE IN THE SPENCER CASE. commenced upon the separate items of an account the statute will run against each item from its date. A glance at the facts in the Spencer case will show the extent of the rule as a binding precedent. The ma- terials were furnished under an agreement, whereby the claimant was to deliver to the owner materials for the construction of a building. The price was fixed on all materials that should be delivered before naviga- tion closed. As to the rest, he was to be paid at the usual marhet rates. It will be seen that this was not an entire contract for the performance of a speci- fied act in consideration of a certain fixed sum of money, but an arrangement establishing the price of future sales. Each order and delivery was a contract in itself, for which a separate action could be main- tained, and upon which the statutory limitation would necessarily run. In the language of the Court : " The claim made by the plaintiff in his notice of lien is not for non-payment under a contract for materials, but for the price of materials furnished." This decision arose under the King's Coxmty Act of 1853,* Section 4 of which provides that " such notice must be filed with the Clerk of said county before the expiration of thirty days, after the completion of the work, or within sixty days after the materials are furnished." It is plain, that if the claimant had entered into a con- tract to furnish 150,000 feet of lumber, of assorted sizes, for the building in question, for which he was to receive the sum of $7,500, or $50 a thousand, the " materials " would not be " furnished " until the full * See Part III, "Statutes." 196 THE PERFECTION OF A LIEN. APPLICATION" OF THE SPBIfCBR EITLE. amount of the lumber was delivered according to tie contract, and a lien " founded on the contract," if filed within thirty days from its completion, would cover the entire claim, although the performance might have occupied a year. This rule is particularly true, under statutes similar to that of 1875 for New York City, where the lien will only cover the amount due at the time of filing, as any other ruling would deprive the claimant of a lien for any amount, except the portion furnished within the sixty days, prior to the comple- tion of a contract. § 177. Application of the Rule in the Spencer Case. — Two (somewhat dissimilar) decisions have lately been rendered by the Supreme Court, under the authority of Spencer v. Barnet. One, Goodale v. Walsh,* holding that a person performing labor at several times, upon a building by " day's work," was only entitled to a lien for the work done within the thirty days next previous to the filing of his lien. The other, Costello v. Dale,f holding that the lien will cover extra work, ordered at different times, during the performance of the entire contract, although nearly all of it was ordered and performed prior to the thirty days next preceding the filing of the lien. The former decision was made under the King's County Act of 1866, and the latter under a like pro- vision contained in the Amendment of 1869 of the State Act. But the same theory is accepted in each of these cases. The entire lien was allowed in the latter case, because the work being accessory to an entire * 3 Thompson & Cook, 311. f 3 Thompson & Cook, 493. TIME FOE FILING THE NOTICE. 197 APPLICATION OS THE SPBIfOER. contract became a part and parcel of it, so that there was really one contract of an increased amount. " The plaintiff's evidence," says Judge Barnard, in deliver- ing the opinion of the Court, " tended to establish that the work was done on the same premises, and was done by order of the defendant during the period in which the work was done under the written con- tract, and, subsequently, that it was all really one piece of work, although the items were directed and done at different times, between April and the 14th of August. If the plaintiff was to be credited, he was entitled under the lien act to all his labor." In the former case, the claimant being employed by the day, generally, he was able to quit work at any time and demand his day's wages. Hence, for each day, there was a separate implied contract of hire with a separate performance, and the limitation, there- fore, expires thirty days after each of such perform- ances. 'Taken in this sense, the rule does not conflict with that stated in Costello v. Dale or with any of the former adjudications on this point. § 178. Same.— Will not Apply to Work Done Under an Entire Contract. — Considering the rule in the Spen- cer case to apply — as is contended by the Court in Goodale v. Walsh — to liens filed by material-men un- der an entire contract, will it apply equally to the per- formance of services under the same circumstances ? There is a distinction between the furnishing of mate- rials — which must necessarily be divided into items, specific portions being delivered as required in the con- struction of a building — and that of the services of a mechanic or laborer, which is usually a single continu- 198 THE PERFECTION OF A LIEN. THE KULE IN OTHEE STATES. ous act, forming but one item. From the unity or con- tinuity of performance in the latter case, it would seem to follow that if any portion was within the time, the whole is within the time. Again it may well be urged that work cannot all be done at one time, but necessarily during a protracted period, and the statute, by referring to it in the words " after the work is done," must have referred to the whole work that was " done " or com- pleted at that time, thus for example : A, the owner, con- tracts with B, a carpenter, to perform the carpenter work in the erection of a building in the sum of one thousand dollars, payable upon the completion of the work. In pursuance therewith B performs the work, and the performance occupies nine months. Not receiving payment, he files a lien upon the building one month after the work is done, for the amount due under the contract — $1,000. In this nine month's work there is but one item and one pei'formance. Can the Courts sever that item, and give judgment for a frac- tional portion of the entire contract 1 It may be so, but the entire scope of the law seems to forbid such a construction. The first section of each of our lien statutes provides that any person who shall perform any labor under a contract with the owner shall, upon complying with the terms of another section, requiring a notice to be filed within a specified time after the work is done, have a lien for the value of his labor. In our supposed case, A filed' his lien within the re- quired time after the completion of his work, he is therefore, by the express terms of the statute, entitled to a lien for the full value of his labor. § 179. The Rule in other States.— It cannot be 9 TIME FOR FILING THE NOTICE. 199 COMPUTATION OF TIME. presumed that in the Spencer case the Court of Ap- peals, in the absence of an express statement to that effect, intended to establish the precedent that the lien claim filed within the specified time after an entire contract has been completed, will only cover that por- tion of the services or materials rendered within such period, for such a construction is entirely unsupported by the courts of other States. It has always been held that a party who works or furnishes materials under an entire contract,' which may not be wholly fin- ished for years, has no claim in fact or in law, until the contract has been performed. He cannot divide his claim into parcels and file separate liens. He must wait until the contract is completed ; for where the bargain is for a gross sum, he can fix no price upon particular parts of the work, and, therefore, the time for filing the claim does not begin to run until after the date of the last act done in the execution of the contract; that is, when the contract is for materials after the last delivery.* § 180. Computation of Time. — It is a general rule of statutory construction, that when a specified act must be done within a certain period, that in the computation of the time, the first day will be excluded and the last included.f This follows from the fact * Bartlett v. Kingan, 19 Penn., 341 ; Pratt v. Campbell, 24 Id., 184; Shaffer v. Hull, 2 Penn. Law Journal, 93 ; Fowler v. Bai- ley, 14 Wis., 135; Bolton's Appeal, 3 Grant's Cases, 204; Der- rickson v. Edwards, 5 Butcher (N. J.), 468. f Hahn v. Dierkes, 37 Mo., 574; Hoffman v. Duel, 5 Johns., 232 ; Jackson v. Van Valkenberg, 8 Conn., 260; Snyder v. War- ren, 2 Cowen, 518. 200 THE PEEPECTION OF A LIEN. COMPUTATION OF TIME. that only full days are intended by the statute, the first day, being only partial, is not reckoned. Hence, under a statute requiring a lien to be filed within six months from the completion of the wort, if the work is completed on the second of June, a lien maybe filed on the second day of December,* but a lien filed on the third day of December would be too late.f § 181. Same^Where the Last Day is a Legal Holi- day. — Considerable difference of opinion exists in the courts of this country as to last day of actual perform- ance where the limitation falls upon a dies non. It is, however, a prevailing rule in the construction of statutes, that when the last day of performance of a given act falls on Sunday, the act must be accomplished on the preceding day,| following the rule of computation in the case of comm.ercial paper where days of grace are allowed. But in the case of ordinary contracts,§ and also in pleadings, the rule is more lenient and gives the following day for the performance, on the principle that otherwise the days for actual performance would not be complete. This principle had been adopted in construing the period of limitation in lien cases. || * Esler V. Peterson, 1 Legal Gazette (Penn.), 303. f Hoops V. Parsons, 3 Miles (Penn.), 341. See also to the same effect, Schubert v. Crowley, 33 Mo., 564. X Sedgwick on Statutory and Constitutional Law, 420 ; Browne V. Wellington, 1 Sandf., 6B4; Ex parte Dodge, 1 Cow., 147 ; Peo- ple V. Luther, 1 Wend., 43; Bissell v. Bissell, 11 Barb., 96; Patrick v. Faulke, 45 Mo., 313. I Salter v. Burt, 30 Wend., 305. II Carothers v. Wheeler, 1 Oregon, 191. Sunday as an intervening day is never excluded in the computation of time wliere the period is over a week.* * King V. Dowdall, 3 Sandf., 131 ; Patrick v. Faulke, 45 Mo., 313. THE PERFECTION OF A LIEN. CHAPTER XII, EEQX7ISITES OF THE KOTICE. § 182. The filing of a notice of claim, in the manner prescribed by statute, is an essential and Jurisdictional requisite, without which a lien can neither be secured nor enforced.* Personal knowledge of the indebtedness, and that it is a proper charge against the premises, will not take the place of the public notice so as to affect the rights of a subsequent purchaser.-j* Neither can the notice of lien be -v^aived by the owner to the pre- judice of third parties. J Nor will any defect therein be waived by a general appearance in the foreclosure proceedings, it being a jurisdictional objection.§ Where the notice is defective, the Court has no power to amend it so as to give the claimant a lien under the statute. II § 183. Form of Notice.— No particular form of notice * Shelby v. Hicks, 5 Sneed (Tenn.), 197 ; Stewart v. Christy, 15 La. An., 335 ; Davis v. Schuler, 38 Mo., 24 ; Beals v, Cong. B'nai J., 1 E. D. Smith, 654. t Sinclair v. Smith. 3 B. D. Smith, 677. X McKim V. Mason, 3 Md. Ch. D. 186. § Beals V. Cong. B'nai J., 1 B. D. Smith, 654. II Id., Hallahan v. Herbert, 2 Daly, 253 ; Conkling v. Wood, 3 B. D. Smith, 662. EEQUISITES OF THE NOTICE. 203 POEM OB NOTICE. is necessary, but it should, in substance, comply witli the requirements of the law, as no averment can be dispensed with that the statute prescribes.* It should show affirmatively, on its face, that it is within all the provisions of' the statute. f A safe and convenient rule in the preparation of the notice of claim, is to first read carefully the particular law under which the right of lien is claimed, and then write down, in the language of the statute, each averment made necessary to the creation of a lien.;}; § 184. The Address. — The notice of lien, usual in practice, contains : 1st. The address. This is usually iu the name of the County Clerk, with whom the lien is filed. I never could see the object in requesting that officer to take notice of a lien in which he has not the slightest interest. It should be filed with him and addressed to the public, or at least, " to all whom it may concern." The object of the notice is to inform the public that the claimant asserts a lien on a certain piece of property to a certain amount. So that any person dealing with the lowner in respect to such prop- erty, shall have knowledge of the claims of mechanics or material-men thereon.§ , " To the Clerk of the County of and all others whom it may concern," combines practice with reason, and may well be adopted. But any address will answer, as none is necessary. * Hubbell V. Schreyer, 14 Abb. (N. S.), 284. f Smaltz V. Knott, 3 Grant's Cases (Penn.), 337; Peck v. Hensley, 31 Ind., 344. t Phillips on Liens, p. 673. § Peck V. Hensley, 21 Ind., 344; 204 THE PEEFECTION OF A LIEN. CONTENTS OF THE NOTICE. § 185- 2d. The Name and Residence of the Claim- ant under nearly all of our statutes, is essential, and it is preferable to insert it in the body of the notice, although a notice stating that " I claim a lien, etc.," and signed " John Doe, Claimant, No. 120 Fifth Ave- nue, New York City," would be sufficient. It is cus- tomary, but not essential, to state in the notice whether the claim is made as contractor or as sub-contractor.* Neither is it necessary to state whether the claim is made as pai'tners or individuals,f but where a claim is made by joint contractors or by co-partners, the name and residence of each person or member must be in- serted. X If the name and address of only one member appears in such a case no lien can be acquired, either in favor of such claimant or of the firm.§ Where the law requires the " names of the party claimant " to be inserted, but is silent as to their place of residence, it is sufficient to state the firm name,|| and where the statute is not specific on the subject, the initials of the given name of the claimant is sufficient. § 186. 3d. The Amount of the Indebtedness.— The amount of the claim must be stated in order to ascertain the extent of the lien, and designate the amount of de- posit necessary to discharge it. The claimant is limited, as against the specific property charged to the amount stated in the notice, together with the interest and * Lutz V. Ey, 3 E. D. Smith, 631. t Knabb's Appeal, 10 Penn., 186. X Hauptman v. Catlin, 3 B. D. Smith, 666 (S.C, Affi, 30 N.Y. 247). § Hubbell V. Schreyer, 14 Abb., N. S., 384. II Black's Appeal, 3 W. & S., 179. REQUISITES OF THE NOTICE. 205 CONTENTS OF THE NOTICE. costs of foreclosure, and although the judgment may be for a less amount,* it cannot exceed that sum.f It follows that if no amount is mentioned in the notice the lien is entirely void, and it has so been held.J As to the effect of an overstatement of the amount of a lien and of the willful omission of known credits, see Chap. X, infra. § 187. 4th. The Person against -whom the Claim is Made is usually a statutory requisite, and designates the debtor, or one personally liable to the claimant on ac- count of the work done or materials furnished, whether he be the owner, contractor, or sub-contractor. Under the New York City Act of 1851, the courts held that it was not necessary to state with whom the claimant made his contract,§ but this has since been made a stat- utory provision, and should be followed more closely. But the name of one of several joint debtors has been held sufficient. 1 1 § 188. 5th. Statement of Claim. — It is unneces- sary to set forth the items of the indebtedness in the notice of lien. The gross amount or value of the materials furnished or work done, together with the aggregate payments a;id a statement of the balance due, is sufficient under any of our statutes, and where the law is silent on the point, the ac- * Eollin V. Cross, 45 N. Y., 766. t Dunning v. Clark, 3 E. D. Smith, 535 ; Eagleaon v. Clark, Id., 644 ; Prot. U. v. Nixon, 1 E. D. Smith, 671. X Prot. IT. V. Nixon, 1 B. D. Smith, 671. § Hauptman v. Catlin, 3 B. D. Smith, 666 ; S. C, 30 N. Y., 247 ; Lutz V. By, 3 B. D. Smith, 631. II Tibbettsw. Moore, 33 Cal., 308 ; Eoach v. Chapin, 37 111., 194. 206 THE PERFECTION OF A LIEN. coirTEsrTS of the notice. tual balance claimed to be due is sufficient.* The char- acter of the work and the kind of materials should also appear, as this tends to prevent fraud on the part of the sub'contractor or collusion with the contractor or owner, enables the owner to ascertain the correct- ness and reasonableness of the demand, and gives the most definite information and protection to lienors inter se, and to subsequent purchasers and encum- brancers.f § 189. 6th. The application to the building must also be shown in the notice. In Pennsylvania, where " the nature of the work and materials " most ap- pear in the notice, the courts have held, that the application to the building must be explicit enough to exclude work done upon any other property, and that a statement that it was performed " for or about the erection and construction of the said building and appurtenances " is not sufficient, as the claimant must bring himself affirmatively within the provisions of the statute, and not wait for antagonistic creditors to show the reverse. J But this principle is founded under a system that does not extend to the main building the charge for work done upon its appurtenant struc- tures. Such an allegation would not onlj^be sufficient but is customary and proper under our laws. * Brennan v. Swasey, 16 Cal., 140 ; Selden v. Meeks, 17 Id., 128; Laswell v. Presb. Church, 46 Mo., 279; See Knight «. Nor- ris, 13 Minn., 473 ; Heston v. Martin, 11 Cal., 41 ; Thomas v. Hues- m^n, 10 Ohio St., 157. t Carson v. White, 6 Gill (Md.), 17; ISToll v. Swineford, g Penn., 187 ; Davis v. Livingston, 29 Cal. , 283 ; McAuley v. Mildrum, 1 Daly, 396. X Barclay's Appeal, 13 Penn., 495. EEQUISITES OF THE NOTICE. 207 CONTENTS OF THE NOTICE. § 190. 7th. The name of the Owner is anotlier essen- tial requisite under most of our statutes for the security of a valid lien. Excepting in New York City, the notices of lien are docketed in the name of the owner; by de- signating the name of any other person than the true owner, the docket fails to show a charge against the property. Hence, as to subsequent purchasers or en- cumbrancers without actual notice, no lien could be asserted in such a case. "Where the owners are joint tenants, or tenants in common, they should be several- ly designated, but if they are a joint stock company or corporation, or an unincorporated association, trans- acting business under an associate name, they may be designated by their corporate or associate name.* It has been held that the notice is sufficient if it fully identifies the owner, although the name may not be accurately stated. Thus, "The State Board of Educa- tion of Illinois," instead of "The Board of Education of the State of Illinois," is not a fatal variance, f the name and style being substantially the same. "Where there are several joint owners, and they are not all named, the notice will be sufficient to charge the in- terest of those named, J and where the contract is made with one of several owners, who alone was liable for the work, a statement of lien against all, does not in- validate it as to the interest of the contracting owner.§ *Beals ^. Cong. B'Nai J., 1 E. D. Smith, 654; Wilson v. Commissioners, 7 W. & S., Penn., 197. f Board of Education v. Greenbaum, 39 111., 610. J Dayis v. Livingston, 39 Cal., 383. § Hillburn v. O'Barr, 19 Geo., 591, and see TibbettS v. Moore, 23 Cal., 208. - 208 THE PEEFlfCTION OF A LIEN. CONTENTS OF THE NOTICE. § 191. Same. Under the New York City Act of 1875, the term, " the name of the owner, or reputed owner, if hnown^'' is inserted. Similar provisions are contained in the laws of California and Missouri, and the courts there hold the claimants to a very strict compliance wdth the terms of the statute.* But the necessity for a strict rule does not exist in New York City as liens are there docketed in the name of the par- ticular street or locality, and not in that of the owner. An error of statement, therefore, does no practical harm, and it is sufficient to keep within the strict letter of the statute. There is no doubt, but that the adjunct " if known " refers to both the clauses, " the name of the owner" and "or reputed owner." Hence, it is not necessary to specify either, if unknown to t^he claimant, and the insertion by mistake of an erroneous name is not fatal, as the claimant may show that the name of the owner was unknown. But the person as- serting a lien ought to make diligent inquiry as to the ownership of the property, and specify that fact in the notice, together with the name of the person ye- puted to be the owner, if he cannot, in the time allotted to him, fix the fact of ownership beyond a doubt. § 192. 8th. The Description of the Property must be sufficient to establish its identity and extent, and, in the City of New York, to enable the County Clerk to docket the lien against the specific lots sought to be charged. The premises must be described,f or, at the * See Hicks v. Murray, 43 Cal., 515 ; Hoffman v. Walton, 36' Mo., 613. + Donnelly v. Libby, 1 Sweeney, 359. REQUISITES OF THE NOTICE. 209 COKTENTS OE THE NOTICE. least, referred to * in the notice of claim. A description by street number is sufficient where that indicates a certain locality, and a known and specific quantity of land, and the street or lot number is sl-w&js prima facie sufficient. f A diagram of the lot charged with the lien, showing the street and side streets, the size of the lot, and distance from a side street, is commonly used, even where the street number is known, and it is the best description where it is unknown. It has been held a sufficient description in the notice of lien to designate the side of the street and the name of the nearest cross streets ; in other words, to designate the block on which the building is situated, without showing the relative location in such block. The com- plaint, however, must contain a full description, so as to determine beyond a doubt the particular building sought to be sold under the lien. % § 193. Same. The fact that the designation only applies to the building in question often assists in making a description sufficient, which would other- wise be incomplete. Thus, where a description con- veys a building on the " west side of Thirteenth Street, between Henry and James Streets, Philadelphia, be- longing to " (the owner described in the notice of lien), was held to be sufficient, although another street intervened between the building and one of the cross * McAuley v. Mildrum, 1 Daly, 396. t O'Halloran v. Sullivan, 1 Iowa, 75. X Duffy V. Brady, 3 E. D. Smith, 657 ; S. C, 4 Abb., 4-33 ; Hotaling v. Cronise, 3 Cal., 60 ; O'Halloran v. Leachy, 39 Ind. 150 ; Harker v. Conrad, 2 S. & E. (Penn.), 301 ; Kelly v. Brown,' 20 Penn., 446. 14 210 THE PERFECTION OF A LIEN. CONTENTS OV THE NOTICE. streets named; it appearing that the owner had no other house on Thirteenth Street.* For the same rea- son a description of a house " in Dillersville, adjoining lands of John Jones and the Pennsylvania Eailroad," is sufficient if the owner had no other property to which the description would apply.f So describing the property as " the Odd Fellows Hall at Columbus, Pa.," J " a cotton mill at Marseilles owned' by B. B.," § " Moore's New Quartz Mill, being at or near the town of Scottsville in Amador County, Cal.," | " The works known as the South Fork Canal, near Placerville in Eldorado County,"^ have been held sufficient where the description will apply only to the property intended to be charged with the lien. And if the property is thus identified, the lien will not be lost because a specific definition connected therewith is erroneous, as the only object in filing the claim is to notify third parties of the rights of the claimant in the property in question. Thus " the several buildings known as the Gas Works of La Crosse City Gas Light and Coke Company, situated on lots numbered 8, 9, 10, etc., in Block Number 14" is sufficient, although the de- scription as to the block is erroneous.** Neither would an error in the points of compass, or other- * Springer v. Keyser, 6 Wharton (Penn.), 187. t Shaffer v. Hull, 3 Penn. Law Journal, 93 ; Knabb's Appeal, 10 Penn., 186 ; Strawn v. Cogswell, 28 111., 457. I Odd Fellows Hall v. Masser, 24 Penn., 507. § Strawn V. Cogswell, 28 111., 457. II Tibbetts v. Moore, 23 Cal., 208. •[[Gordon v. South Fork Canal Co., 1 McAllister 0. 0., 513. •* Brown v. La Crosse City, 16 Wis., 555. REQUISITES OF THE NOTICE. 211 CONTENTS OV THE NOTICE. wise, that does not mislead tliird parties be held fatal.* § 194. Same. The Iiien will be held InsufUcieut where it applies equally well to other property not intended to be charged thereby. As, for instance, where it is filed against two or more houses in. a cer- tain block without specifying, particularly, the houses in question.f So a description of property as, " one acre, more or less, lying north of, or adjoining, the north-west corner of Sixby's Addition," to a certain village, J or, as a " double saw-mill in Clarion County, situate on the waters of the Clarion River, and on the east side of said river," § is void for insufficiency. §195. Same. The Best General Rule to be adopted as to the sufficiency of a description is that given in § 379 of Phillips on Mechanics' Liens, to the effect that if enough appears from the description to enable a party familiar with the locality to identify the prem- ises intended to be described with reasonable certainty to the exclusion of others, it will be sufficient. || . * * McCoy V. Quick, 30 Wis., 531 ; Lindsley v. Cross, 31 Ind., 109, t Pennock v. Hoover, 5 Eawle Penn., 291; In re Hill's Estate, 2 Penn., L. J. R., 96 ; Donnelly v. Libby, 1 Sweeney, 359 ; Matlack V. Lare, 33 Mo., 363. X Hunger v. Green, 20 Ind., 38. § Washburn v. Russell, 1 Penn., 499 ; and see Howell v. Zerbee, 36 Ind., 214 II As to the property to be covered by the notice of lien, see ante, §§ 108, 111, and for the form of liens under the several acts in this State, see Poste (Practice and Forms). THE ENFORCEMENT OF A LIEN. CHAPTEE XIII. THE NEW TOEK CITY ACT. § 196. The New York City Act, now existing, took effect from the first day of July, 1875. No decisions have yet been given under it, and the system of proce- dure, as applicable to mechanics' liens, is entirely new. It will, therefore, be necessary, before entering into the subject of the practice applicable thereto, for us to consider, seriatim, each section of the statute, separately, and, in its relation to other sections, and to the Act of 1863, that has become familiarized to the courts and the profession. § 197. The Lien.— "§ 1. Every person performing labor upon, or furnishing materials to vbe used in the construction, alteration, or repair of any building, vault, wharf, fence, or any other structure in the city or county of New York, shall have a lien upon the same for the work or labor done, or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building, or other im- provements, or his agent ; but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim prescribed by Section five of this Act. THE ^EW YORK CITY ACT. 213 §§ 1, 3. — THE LIESr. " § 2. Any person who, at the request of the owner of any lot in said city or county, grades, fills in, or otherwise improves the same, or the sidewalk or street in front of or adjoining the same, shall have a lien upon such lot for his work done and materials furnished, to the extent of the liability therefor of the owner of the property at the time of filing the claim prescribed by Section five of this Act." Under the first section if the work is performed or materials furnished at the instance of the owner or his agent, the person performing or furnishing the same shall have a lien therefor. In the second section, which extends the lien to work done upon, or in front of vacant lots, this provision is the same, except that the term ^^at the request of the owner" is used. Each clause is synonymous with the term "in accordance with the directions of the owner or his agent," con- tained in the previous act. As either a request and performance, or performance at the instance of another, creates an implied contract, and as a contract was necessary under the Act of 1863, the change merely simplifies the phraseology without affecting the essence of the former law; and a lien will not now attach without the owner has entered into a contract, express or implied, for the performance of the work.* § 198. The Nature of the Work or Materials. The Act of 1863 only covered work done upon build- ings and the appurtenances thereto. The Act of 1870 extended the right to the case of bridges, trestle-work and other structures connected therewith, and the Act * See ChaDter III., infra. 214 THE ENFOKCEMENT OF A LIEN. §§ 1, 3. — THE IIEK. of 1872 further extends the right of liento the case of work or materials applied to wharves, piers, bulkheads and bridges, and structures connected therewith. The term in Section one "any building, vault, wharf, fence, OT any other sPt^ucture^'' covers and simplifies all the prior acts on this point, while the second section ex- tends it to a new class of cases, work done upon or for the benefit of the land itself. Section twenty-one lim- its the right of lien by excluding from its provisions buildings used for public purposes, thus conforming the, statute to the decisions.* §199, When the Lien Accrues.— The next pecu- liarity of this section arises from the omission of the qualifying phrase, " on complying with the Sixth Sec- tion of this Act," may have a lien, etc. Formerly the lien accrued , by virtue of the filing of the notice with the clerk, and, having no existence until such notice was filed, it could not, in any event, ante-date the filiiig of the notice. Under this section the notice does not create a lien, but simply designates and perfects an existing lien created by the pdMbrmamce of certain acts.f § 200. The Extent of the Lien.— The concluding clause of ' Section one : " But the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay, at the time of the filing of the claim prescribed by Section five of this Act," and the corresponding clause, which is more happily expressed in Section two, changes the * See Chapter IV., infra, as to the nature of the work and ma- terials included in the section. f See, also, post, §§ 3, 4, and 1, of this Act. THE NEW YOEK CITY ACT. 215' § 3. — ^THE OWUEE. law somewliat materially from the former act, which allowed a lien to be filed at any time, and it would cover all moneys coming due, thereafter, from the owner. A lien is only binding, under the present act, to the extent of the amount due from the owner and to the claimant at the time of filing the lien. He must file successive liens where payments come due, subsequent to the filing of the first notice. § 201. The Owner.—" § 3. The land upon which any building, improvement or structure, is constructed, together with the appurtenances, shall be subject to the liens, if, at the time the work was commenced or the materials for the same had commenced to be furnished, the land belonged to the person who caused said building, improvement, or structure, to be constructed, altered, or repaired. But, if such person owned less than fee simple estate in such land, then only his in terest therein shall be subject to such lien." This section was evidently inserted for the purpose of designating the person specified in Sections one and two as the " owner," as the meaning of the words " con- tractor " and " sub-contractor " is pointed out in Sec- tion fourteen. So far as it accomplishes this purpose it simply carries out the spirit of the decisions under the former acts, to wit, that the owner is the person who, owning some interest in the lot or building, orders the work to be done, and the lien covers the interest of such owner, be it more or less. This Sec- tion, however, goes further, and, either intentionally or otherwise, charges the entire lien upon the premises to the extent of the interest of the owner (that is, the person at whose instance the work was performed) at 216 THE EKFOECEMENT OF A LIEN. § 3. — THE OWNER. the time the work was cownnenced or the materials com- menced to be furnished. This clause, except so far as it may be modified in case of encumbrances by the next Section, in effect re-enacts the clause contained in the original Act of 1863, but repealed in 1866, giving the right of lien " notwithstanding any sale, transfer, " or encumbrance made or incurred, at any time after " the commencement of the work or furnishing of ma- " terials." The Amendment of 1866 charged the lien upon the title that the owner had in the premises at the time of the filing of the lien, " and to no greater " extent." As the law now stands, the lien, in respect to conveyances, if duly perfected by the filing of the notice, relates back to the date of the commencement of the work by the claimant, and is not affected by any subsequent transfer. It follows, therefore, that purchasers of real estate must not only search the lien docket, but ascertain whether any work has been done upon the premises within ninety days, and, if so, whether the same has been paid for by the owner. Under th^ Act of 1863 the claimant aoight file his lien upon the commencement of the work and thus prevent subsequent transfers from affecting his rights. But the lien now covers only the amount due at the time of filing it. This provision is, therefore, neces- sary. Otherwise, the owner might sell the premises the day before any payment became due, and thus de- prive the mechanics or material men of the benefits of the lien law.* * On this subject see, also, § 47 infra, and §§ 1, 4, and 7, of this Act. THE NEW YORK CITY ACT. 217 § 5. — THE NOTICE OE CLAIM. § 202. Priority^of Liens.—" § 4. The liens provided for in this act shall be preferred to any lien, mortgage, or other encumbrance, of which the lien-holder had no notice, and which was unrecorded at the time of the filing of the claim referred to in the next section." Considering the lien to have attached when the work commenced, and to exist by virtue of its performance, this section only asserts the consequent legal proposi- tion, that it takes precedence over other equitable liens not previously perfected by record or actual notice. It places an unfiled lien on the same footing as an unrecorded mortgage, with this exception in its favor ; that it takes priority over a subsequent con- veyance of the property — the provisions of the first three sections not being, in fact, modified, in this re- spect, by either Sections four or seven of this act. In other words, as to third parties, who are encum- hrancers, priority of notice gives priority of lien ; but, as to the owner, the lien is created by the commence- ment of the work. This section is only intended to establish the rank and order of payment existing be- tw.een the liens under this act and other encum- brances on the same property. It does not affect the relation of mechanics' liens to each other, or the rights of claimants inter se* § 203. The Notice of Claim. — " § 5. Every original contractor, within sixty days after the completion of his contract, and every person, save the original con- tractor, claiming the benefit of this act, must, within thirty days after the completion of any building, im- * See post, §§ 14 and 15 of this act. 218 THE ENFORCEMENT OF A LIEN. §5. — ^THB NOTICE OB CLAIM. provement, or structure, or after the completion of the alteration or repair thereof, or after the completion of the work or the furnishing of the materials for which the lien is claimed, file with the County Clerk of the county, a claim containing the names and residence of all the claimants and a statement of the demand, after deducting all just credits and off-sets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was em- ployed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and whether all the work or materials for which the claim is made has been actually performed or furnished, and if not, how much of it, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be veri- fied by the oath of himself or one of several united in interest, or of some other person. The verification must be to the effect that the statements contained in the claim are true to the knowledge of the person mak- ing the same. If his contract or any p^ft thereof is in writing, a copy of such writing must be filed with and made part of his claim." § 204. Time for Filing the Claim.— The Original Contractor.— This section is substituted for Section six of the Act of 1863. It gives the original contractor sixty days extra time for the filing the notice. By the previous law the claim was required to be filed by him before the completion of his contract. He is now allowed sixty days after its completion. § 205. Same.— The Sub-contractor.— The time for the sub-contractor to file a claim was also limited by the THE NEW YORK CITY ACT. 219 §5. — THE NOTICE OF CLAJCM. completion of tlie original contract. It is now ex- t(^nded thirty days after its final completion. As the sub-contract must necessarily be completed prior to or upon the completion of the original contract, the clause " or after the completion of the work or furnishing of the materials for which the lien is claimed " can have no possible effect. If his contract is first completed he may file the notice within thirty days thereafter, or wait and file it at any time prior to the expiration of thirty days after the performance of the original con- tract. This was evidently taken from the correspond- ing provision in the original act, but by prefixing the word " or " instead of ."and" the entire force of the clause was destroyed. The limitation may be briefly stated thus : the contractor within sixty days and the sub-contractor within thirty days from the expiration of the original contract must file his claim.* § 206. What the Notice must Contain.— 1st. " The name and residence of all the claimants." This does not of course refer to all persons having liens upon the property, but to the several persons uniting in the notice of lien. As the place of residence is given for the purpose of facilitating the service of summons in the foreclosure suit, the claimant, if a non-resident transacting business in the city, should insert both his residence and place of business, the former to answer the terms and the latter the spirit of the act. § 207. "The Name of the Owner, if Known."— As liens are indexed in the name of the streets and a de- scription of the property is given, the name of the owner * See Chap. XI., infra. 220 THE ENFORCEMENT OP A LIEK. § 5. — THE NOTICE OF CLAIM. is not essential where the lien is filed by a sub-contractor, save where it is made a positive requirement of tlje statute. If the sub-contractor inserts the name of any person other than the owner through mistake, the lien is not invalidated, as it shows that the name of the owner is not known. The better practice would be to state the name of the owner, if known. "Where doubt exists, give the name of the reputed owner, alleging that the name of the' owner is unknown. § 208. 3d. The Claimant's Contract.— The contract of the claimant must be set out in full. If it is a writ- ten contract it must be inserted in or annexed to the notice of claim. The amount of work done and mate- rials furnished under such contract at the time of the filing of the lien must appear for the purpose of show- ing the amount of the lien. The requirement as to the insertion of the contract is new, but with this excep- tion the prior law is not materially changed. § 209. 4th. Description of the Property.— " Also a description of the property sufficient for identification." The description should be the same as that required by the prior act. The name and number should ap- pear if the lot is numbered. If not, the side of the street, and the block should be given, with the dis- tance from one of the cross streets. And a diagram of the property should also be inserted to complete the description. § 210. 6th. The Verification.— The claim must be verified by " himself, or one of several united in inter- est, or by so'nie other person," and the affiant must allege that the statements are true of his own knowledge. The form of the verification of pleadings is sufficient, THE NEW YORK CITY ACT. 221 § 6. — NOTICE OS SEVERAL BUILDINGS. except that none of tlie matters can be alleged on information and belief. It might be advisable vrhere the claim is verified by a third party, to state the reason- — as in the verification of a pleading — whj the claimant does not verify it^ although not essential Tinder this act.* § 211. Notice on Several Buildings. " § 6. In every case in v^^hich one claim is filed against two or more buildings or other improvements owned by the same person, the person filing such claim must, at the same time, designate the amount due to him on each of such buildings, or other improvements, otherwise the lien of such claim shall be postponed to other liens. The lien of such claimant shall not extend beyond the amount de- signated as against other creditors having liens by judgment, mortgage, or otherwise, upon either of such buildings or other improvements, or upon the land upon which the same are situated." This section is new and explains itself. It does not invalidate liens filed in bulk against several buildings. The penalty ie fixed by the section itself, to wit, a postponement to claims subsequently filed in which the amount due on each house is fixed and definite. It would not postpone them to other liens filed in the same manner ; hence, subsequent incumbrances in the nature of judgments or mortgages upon the entire property cannot take precedence. The gist of this sec- tion may be thus stated : Aggregate liens on several buildings are postponed to specific liens on the same * For the general principles applicable to the notice, see Chap- ter XII., infra, and for the form of the notice, see Form 1, Chapter XIV. 222 THE ENFOECEMENT OF A LIEN. § 7. — FILING AND EFFECT OF THE LIEN. buildings ; and the remedy given is to apportion the amount of the aggregate lien upon the several build- ings covered by it. The last clause in this section is confined in its meaning to the case of a lien on several buildings specified in the preceding portion of the same section, and is not intended to point out the ex- tent of liens in general. The terms used are " such claimant," " upon either of such buildings." The legal effect of this clause is, that after the claimant has ap- portioned the amount of his claim upon the several buildings, as to third parties, he must . stand by his apportionment ; he cannot increase the amount on any building to their damage.* §212. Filing and Eflfect of the Lien. "§ 7. The clerk shall enter the claim in a book kept by him for that purpose, called the lien docket ; such entry shall con- tain the name and residence of the claimant, the per- son who incurred the debt, the amount and the date of filing, the street and particular place where located, in such manner as to be convenient in searching for the liens by street and block. The Cou»ty Clerk shall receive ten cents on filing the same. Except as pro- vided in the fourth section, the lien shall attach; from the time of filing of the claim, to all the right, title, and interest, which the owner then has in the prop- erty therein described, to the extent of the liability of such owner for the claim preferred." § 213. Duty of the County Clerk. The first divi- sion of this section referring to the duties of the County * For form of notice under this section, see Note B, Form 1, Chapter XI. For the general principles on this sabject, see Chapter V., infra, Sees. 101 to 108. THE NJEW YORK CITY ACT. 223 y § 7. — FILING AND EFFECT OF THE LIES'. Clerk, is taken substantially from Section six of the Act of 1863. Tke effect of tte former law is not changed. It is noticeable that three provisions of the former law in reference to the County Clerk are omit- ted. The first, in reference to a notice of suit, is un- necessary under the present mode of foreclosure, except so far as it is provided for in the next section. The second, in relation to a search, is practically nullified, as a Us pendensTDOMst he filed, and an action commenced within three months from filing the claim. Except as to such three months, a search for Us pendens is suffi- cient. Third, the amendment of 1868 in reference to the appointment of a clerk, is omitted; this, however,, has more effect upon the individual in question than upon the law of liens, and need not be considered in this work. It was evidently not intended by the Legislature to abolish this office, as the special duties of the County Clerk are practically the same as under the Act of 1863. § 214. When the Lien attaches. The second division of this section must be read in connection with Sections one, two, three, and four ; and it will be seen that an equitable lien, in fact, attaches from the commencement of the work, which by Section three is sufficient to charge the fee as against a subsequent grantee, and by Section four is made superior to the equitable lien of an unre- corded mortgage. Considered in this light, the intent of this section is to limit the amount of the lien, rather than to fix the time when it attaches to the property. It provides that the amount of the lien, as against the owner's interest in the property, shall not exceed the sum due from the owner to the contractor at the time 224 THE ENFORCEMENT OF 'A LIEN. . I §8. — LIMITATION' OF A LIEN — LIS PENDEITS. of the filing of the lien. This provision is necessary from the fact that otherwise the lien existing by virtue of the work or materials furnished upon the premises by a sub-contractor, would be valid for the full value of the work performed, to the prejudice not only of the owner, but subsequent encumbrancers. Although it is true, as a general principle of law, that when a statute which grants power or creates a right, expressly states when such right is created or such power shall begin to be exercised, any other time is excluded on the principle of Expressio unius est ex- clusio 'alterius* it is equally true that this statute in no part states when the lien shall commenGe or begin, the principle of expressio tonius can, from its terms only, ap- ply in the case of an express statement. All this sec- tion states is, that' at a certain time, the lien attaches to a certain amount. It may exist previously for a different amount.f § 215. Limitation of a Lien — Lis Pendens. "§ 8. No lien, provided for in this act, shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be com- menced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket. And where a claim- ant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him or on his behalf. * Ohilds V. Smith, 55 Barb., 45. t See supra, Sections one, two, three and four of this act. THE NEW YORK CITY ACT. 22 'Z'^O i 9. — EN'FOECEMEN'T OF CLAIM. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien ; such action may be prosecuted to Judgment against the per- sons liable for the debt." The limitation of one year under all former acts has been omitted in the existing law. The eifect of this omission will be treated of more fully hereafter.* For the purposes of this section it is sufficient to say that the only fixed limitation of the life of a mechanics' lien is the contingent one here inserted ; it expires in ninety days from filing the claim unless the foreclosure suit is commenced, a Us pendens filed and noticed on the lien-docket within that period. Sub-division six of Section eighteen provides that the lien shall be absolutely discharged without any action on the part of the owner if the Us pendens is not filed within such period. The owner may, however, compel proceedings to be commenced upon the claim at any time prior to the expiration of the ninety days upon a penalty of a discharge of the lien, by securing an order of the court to that effect on notice to the claimant as speci- fied in sub-division six of Section eighteen. For the form of a Us pendens under this section, see Form .3, Chapter XIV. § 216. Enforcement of Claim. "§ 9. Any claimant who has filed the notice mentioned in the fifth section of this act may enforce his claim against the property therein described, and against the persons liable for the debt by a civil action in a court of record held in said city.'' * See post, § 32 of this act. 226 THE ENFORCEMENT OF A LIEK §§ 10, 11, 12.^THB FORECLOSUEE OS THE LIBIT. This section contains two changes from the former system, ^irst, it makes the foreclosure an action, instead of a special proceeding ; * /Second, it deprives the District Court of Jurisdiction ; both admirable pro- visions. It vrill be noticed, also, that a personal judg- ment can only be taken against the persons liable for the debt. Under the former act a judgment could be rendered by a sub-contractor against the ovpner personally for the extent of the amount due by him to the contractor; now the contractor, alone, is per- sonally liable in such a case. § 217. The Foreclosure of the Lien. " § 10. The manner and form of institxiting and prosecuting any such action to judgment and any appeal from such judgment shall be the same as in actions for the fore- closure of mortgages upon real property, except as herein otherwise provided." " § 11. The person filing the claim shall be the plaintiff in such action. The plaintiff must make all parties who have filed claims against the property as well as those who have subsequent liens by judgment, mortgage, or conveyance, parties defendant. And as to all persons against whom no personal claim is made, the plaintiff may, with the summons, serve a notice stating briefly the object of the action, and that no personal claim is made. But all persons who have filed claims under this act may, by answer in such action, set forth the same, and the court, in which the action is brought, may decide as to the extent, justice, and priority of all parties to the action." * The proceeding by notice instead of summons is a special proceeding. Hallahan v. Herbert, 57 N. Y., 409. THE NEW YOEK CITY ACT. 227 §§ 14, 15. — ^THE PBIOKITT OF LIEXS. "§ 12. Any number of persons claiming liens upon the same property may join in the same action, and when separate actions are commenced the court, in which the first was brought, may, on the application of the owner of the property, or of any part thereof, con- solidate them." Sections ten, eleven, and twelve relate to the foreclo- sure of the lien ; the adoption of the well-settled princi- ples of a foreclosure by action, in lieu of the special and peculiar mode of procedure under all the former acts, is the most grateful feature of this entire act, and makes amends for its many omissions in other respects. Some questions of practice will necessarily arise to be settled by the courts ; but the general principles of the procedure are known and simple. The excellent feature of the Act of 1863, allowing the rights of the several lienors to be adjudicated in one action, is retained, although it is permissory in the first instance, under the Act of 1875. The practice, pleadings, and forms under these sec- tions, are fully fiet forth in Chapter XIV., and need not be repeated here. § 218. The Priority of Liens— 1st. By Class. "§ 14. All persons entitled to liens on the structure or improvement, except those who contracted with the owner thereof, shall be deemed sub-contractors ; and the Court, in the judgment, shall direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the con- tractor." " § 15. In every case in which different liens are asserted against property, the Court, in the judgment, 228 THE ENFORCEMENT OF A LIEN. §§ 14, 15. — THE PBIOEITT OF LIENS. must declare the rank of each lien or class of liens, and the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank." Section thirteen relates to costs, and will be consid- ered hereafter. Sections fourteen and fifteen corre- spond to Section three of the Act of 1863. There are two classes of liens under this act — contractors and sub-contractors ; the latter taking priority by virtue of the statute. Section fourteen only refers to those contractors under whose contract the sub-contractors referred to therein claim their liens — other contractors will rank with sub-contractors, and take precedence from the time of filing. § 219. 2d. Priority by Time. The Legislature has failed to state the order of payment to be observed be- tween several lien-claimants of the same class, Sec- tion three of the Act of 1863, fixes their legal priorities according to the date of filing their liens. It is to be presumed that the same rule was intended under this act. This is clearly, however, a casus omissus^ in which presumptions have no legitimate authority. Section four does not supply such authority. That Section refers expressly to the priorities existing be- tween liens under this act as a class, and other encum- brances, which,. like mortgages, are required to be re- corded. The question of priority between claimants of the same class, is entirely within the discretion of the courts, under the power vested in them by Sec- tion fifteen. In the exercise of such discretion, the order of filing will doubtless be taken as a basis of seniority of liens. It would be an inflexible rule on THE NEW YORK CITY ACT. 229 §§ H, 15. — THE PKIOEITY OF LIEU"S. the principle of " Qui prior est tempore, potior est jure" if the lien was created by the filing of the notice. But it is not. It is an equitable lien from the date of the commencement of the work. The fore- closure being an equity proceeding, the old maxim would rather tend to fix the priorities as of the com- mencement of the work. This is really the only equitable rule. The claimant enters into the contract, and commences his work, relying on the security of the building for his pay. The property may be deemed a trust fund, out of which his payments may be enforced. That fund is very insecure if any one can take a subsequent short contract, and before the first claimant's contract is due, file a lien, afld absorb the entire value of the property. Before applying the rule prescribed by the repealed statute of 1863, it should be borne in mind, that the provisions of the two statutes are essentially different in two respects. First. Under the former statute the lien was created by filing the claims; and second, the claimant could file his claim at the commencement of the wor\ and thus preserve his rights. To require, under the pres- ent act, that the contractor, mechanic, or material-man shall not file his claim until his contract is completed, or a payment is due under it, and then to fix their priorities from the date of filing, is not equity. Neither is it equity where a builder has worked for a year in erecting a house, to allow. Just before the completion of his contract, material-men who have furnished goods with the knowledge of his prior equitable lien, to sweep away the result of his earnings on ac- count of some extravagant orders on the part of the 230 THE ENFORCEMENT OF A LIEN. § 16. — PAYMENT BY SPECIFIC PKOPERTY. owner. Every brick laid in the building ought, and does, of rigbt, create a lien against the property for its value and the cost of laying it ; and the materials or work furnished subsequently, ought, and does of right, constitute a like lien, subject nevertheless to the former one. The Court will doubtless fix the priority of liens, of the same class, by the date of filing, I trust, however, that I may be pardoned for these sug- gestions as to the true equitable rule in such cases. § 220. Payment by Specific Property. — " § 16. Whenever, by the terms of his contract, the owner has stipulated for the delivery of bills, notes, or any other species of property in lieu of money, the judgment must direct that such substitute be delivered or de- posited as the Court may direct, and the property affected by the liens can only be directed to be sold in default of the owner to deliver such substitutes within such time as may be directed." Where the owner has put it out of his power to de- liver the specific property, in payment, called for by the contract, as, for instance, where it lias been lost, de- stroyed, or transferred by the owner to other parties, he becomes immediately liable for its money value to the contractor, and assumpsit under the contract may be obtained. It is evident that the legislators did not intend, in such a case, to require the plaintiff to enter an interlocutory judgment directing the performance of an act, which the defendant could not possibly per- form, and thus be obliged to lie idle for a certain period before enforcing his claim against the premises in question. Still the language of the statute is plain and positive, and specifies that the judgment must THE NEW YORK CITY ACT. 231 § 17. — JUDGMENT FOK DEFICIENCY. direct the substitute to be delivered or deposited when- ever the owner has stipulated in the contract to deliver property in lieu of money, and prohibits the sale of the property charged by the lien until the owner has failed to comply with such a direction. Under such circumstances the strict letter of the statute must be followed.* § 221. Judgment and Execution for Deficiency.— "■§ 17. Whenever, on the sale of property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency against the persons named in the judgment as liable therefor, in like man- ner and with like eifect as in actions for the foreclosure of mortgages." Under the Act of 1863 a personal judgment could be entered against both the contractor and the debtor, against the contractor for the sum due from him to the claimant, and against the owner for the amount due from him to the contractor. The procedure being now similar to that df a mortgage foreclosure by action, judgment can only be entered against the person in- debted to the claimant. The original judgment is inter- locutory, final judgment being rendered after the sale under the lien for the amount of the deficiency.f * As, to the general principles of law on this subject see §§ 55 and 55a, infra, Jackson v. Turner, 7 Wend., 458 ; Lutz v. Ey, 3 B. D. Si^ith, 621 ; Dowdney v. McCollum, N. Y., and for form of complaint under this section see Form No. 8, Chapter XIV. f For the Form of the Decree and linal judgment, see Chapter XIV., Forms 232 THE ENFORCEMENT OF A LIEN. § 18. — DISCHARGE OF THE LIEST. § 222. Discharge of the Lien.—" § 18. The lieu may be discharged as follows : " 1. By filing a certificate of the claimant or his suc- cessor in interest, acknowledged or proved in the same manner as the satisfaction of a mortgage, stating that the lien is discharged. " 2. By the deposit with the clerk, if before suit, of a sum of money equal to the amount claimed, with in- terest to the time of such deposit. " 3. After the commencement of an action by the deposit with the clerk of such sum as in the judgment of _ the Court, after due notice to the claimant, will be suflacient to pay any judgment which may be recovered against the property. " 4. In lieu of such deposit as prescribed in last pre- ceding sub-division of this section, the Court may require the execution and delivery to the clerk of the county of a bond, in such sum as the Court may direct, executed by two sufficient sureties conditioned for the payment of any judgment which may be rendered against the property in the action. The sureties must justify in at least double the sum named in the bond. A copy of the bond, with a notice that the sureties will attend and justify before the Court or a justice thereof, at a time and place therein named, not less than five days thereafter, must be served on the claim- ant or his attorney. Upon the approval of such bond the Court may make an order discharging the lien. " 5. By a lapse of time, when ninety days have elapsed since the filing of the claim and no entry has been made by the County Clerk of the commencement of an action to enforce the lien. THE NEW YORK CITY ACT. 233 DISCHAEGE OF THE LIEK. " 6. By order of the Court for neglect of the claim ant to prosecute the same. The owner of the property, or of any part thereof, affected by any claim filed under this act, or the person against whom the claim is made, may, at any time after the filing of any claim, serve a notice in writing upon the claimant, or upon any one of the several united in interest, requiring such claimant to commence an action to enforce the claim within a time to be specified in the notice, but not less than ten days from the time of such service, or to show cause at a special term of any court of record in said city, at a time to be specified in such notice, why the claim so filed should not be vacated and can- celed of record. Thereupon, upon the due proof of the service of such notice that no action has been com- menced to enforce the claim, the Court may make an order that the claim may be vacated and canceled of record. And it shall not be lawful to file a claim for the same cause against the same property or any part thereof." This section corresponds to Section ten of the Act of 1863. Sub-division one is copied from the former act ; sub-divisions two and three are tlie same in effect as the former siib-division two. Sub-division four is new, and will doubtless be often resorted to by owners, in order to free their property from the encumbrance of a lien pendente lite. The amount of the bond should be the same as the amount of payment required by sub- divisions one and two. The attorney for the ownei may first draft the bond in the same manner as that of an appeal bond. After the same is duly executed it may be served on the claimant or his attorney, together 234 THE ENFORCEMENT OF A LIEN. §§ 13, 19. — COSTS OF SUIT. with a notice of motion for the approval of the amount and sufficiency and for the discharge of the lien.* Sub- division five dischai'ges the lien by lapse of time. No entry of discharge upon the lien docket is necessary to satisfy it ; and as there, is no authority for the clerk or the Court to satisfy it of record, the owner must content himself with a lien nominally against his prop- erty but which is, in fact, absolutely void. § 223. Proceedings by the Owner.— Sub-division six is new, but corresponds to sub-division four. Section eleven, of the Act of 1854. All the owner, under the Act of 1853, could do was to commence the action himself. Either the owner or the debtor may avail himself of this provision. In practice the proceeding has more the aspect of a notice of motion than an or- der to show cause, inasmuch as the owner or his attor- ney, and not the Court, orders the claimant to com- mence an action or show cause at a certain time not less than ten days thereafter, why the claim should not be vacated. The form of the proceeding in such a case will be given in the concluding chapter of Part II. § 224. Costs.— "§ 19. Costs in all actions under this act, except as provided in Section thirteen, shall rest in the discretion of the Court, and may be awarded to or against the plaintiff or defendants, or any or either of them as may be just. Section thirteen reads as follows : " § 13. At any time after the action is commenced the owner of the property affected may, in writing, *Upon a further consideration of this proceeding, the Author has restated the practice, and added the necessary forms. See page 353, post. THE NEW YORK CITY ACT. 235 COSTS OF SUIT. offer to pay into court any amount stated in the offer, or to execute or deliver any securities or papers, whicli lie may describe, in discharge of the property. If the offer is accepted, in writing, within ten days thereafter, the Court in which the action is pending may make an order that, on deposit with the County Clerk of the amount offered, or the securities or other property de- scribed, the lien be discharged, and the money or secu- rities deposited thereafter takes the place of the lien. In case the offer be not accepted within ten days, and the plaintiff fails to recover any more favorable judg- ment against the property, he shall pay all costs in the action incurred by the owner from the time of the offer." § 225. Section Nineteen is similar in effect to the provision of the Act of 1851, that " the Court may award costs against such of the parties as shall be just," and of the decisions of the Courts under the Act of 1863 (which is silent on this point), that costs shall be allowed as in ordinary equity actions.* § 226. Section Thirteen, although new, does not change the riglits of the parties in respect to costs. Under the provisions of Section three hundred and eighty-five of the Code, if the defendant in a mechan- ics' lien proceeding made ar^ offer of judgment, and the plaintiff, after refusing to accept the same, recov- ered judgment for a less sum, he could be held liable for costs.f This section may be considered as simply amplifying the provisions of Section three hundred and eighty-five of the Code, and applying them to the peculiar attributes of a mechanics' lien. The forms of * Guernsey's Mechanics' Lien Law, § 785. t Knapp V. Brown, 11 Abb., N. S., 118. 236 THE ENFORCEMENT OF A LIEN. § aO.^PEESONAL ACTION-. procedure are, practically, the same under both sec- tions. The form as to the deposits of money or securi- ties, and the discharge of the lien is the same as under sub-divivisions two, three, and four of Section eighteen. § 227. Under the above Sections the only exception to the discretion of the Court in awarding costs arises upon the failure of the plaintiff to recover a more favorable judgmenl^ than he has refused to accept, but Section eleven provides for the service of a summons and notice of the object of action, where no personal claim is made ; if the defendant in such a case unreasonably defends, he should, under Section one hundred and thirty-one of the Code, be made to pay costs, as in an ordinary action. § 228. Personal Action.—" § 20. Nothing contained in this act shall be construed to impair or affect the right of any person, to whona any debt may be due for work done or materials furnished, to maintain a per- sonal action to recover such dpbt against the person liable therefor." This section is new and entirely un- necessary. It does not cover the question of concur- rent remedies, but simply says that giving a man a right to a security shall not prevent him from com- mencing an action upon the original indebtedness. § 229. Property Devoted to Public Use.—" § 21. Nothing contained in this act shall be construed to authorize the filing of any claim against any building or property used for public purposes." This section is, also, peculiar, to say the least. It has invariably been held, in this country, that public property was shielded by public policy from the operation of a THE NEW YOEK CITY ACT. 237 § 32. — WHEK THE STATUTE TAKES EFFECT. mecliaiiics' lien. This legal proposition was obviously intended to be covered by this section. Unfortu- nately, however, it does not shield public property, but all property, public or private, that is ^lsed for public purposes ; thus protecting the house of any per- son, temporarily leased to a municipal government as a court-room or school-house, while a public build- ing in the course of erection, or, whenever it is not used for public purposes, temporarily or otherwise, would be subject to a lien.* § 230. When the Statute takes Effect.—" § 22. This act shall take efiEect on the first day of. July, eighteen hundred and seventy-five. But nothing herein contained shall afEect proceedings commenced prior to that date." Quere: Does this act take effect on the first day of July, so as to require all foreclosure proceedings after that date upon prior liens to be by action ? Or does it simply affect liens filed after that date ? The latter clause of the section, on the principle of expressio unius, would seem to favor the former theory. The filing of a lien' is not, properly speaking, the com- mencement of the proceeding. It is the perfection of a lien upon which the proceeding is to be thereafter commenced. The service of the summons (or of the notice under the former act) is the commencement of the proceeding. By specifying, therefore, that it should not affect the foredoswre previously com- menced, it impliedly asserts that it will affect the lien. But, so far as the foreclosure is concerned, I am satisfied that only the liens filed since July 1st, 1875, * See generally on this subject, §§ 85 to 88, infra. 238 THE ENFOECEMENT OF A LIEK § 23. — WHEIf THE STATUTE TAKES EFFECT. can be enforced by action under tbis act, since Sec- tion nine provides tbat" any claimant, who has filed the notice mentioned in the jifth section of this act, may enforce bis claim, etc., by a civil action,"' The notice must, therefore, be filed under this act. The same in- timation may be gained from the title of the act, " To define and limit " liens, and " provide for the enforce- ment thereof." § 231. The Effect of the One Year Clause upon the Old Liens.— Again, if the Statute of 1863 is re- pealed in toto, as on the first day of July, 1875, except for the purpose of enforcing the liens then existing, how about the one year limitation clause, under that act, which does not exist in the new? Is it necessary to secure yearly extensions of a lien, to meet the demands of a law that has been repealed ? It may be said in answer to this query, that the old law, as to the liens enacted under it, is not dead. If it is repealed at all, it is only repealed as to liens accruing under the new act, and remains in full force as to those filed prior to July 1st. A similar question arose under the Act of 1851, which was expressly repealed by the Act of 1863.* Earl, C, in delivering the opinion of the Commissioners of Appeals, in reference to the latter act, said : "The clear purpose of this act was to pro- vide a new system as to those liens (created after the act took effect), and to repeal the old one, as to all liens to be thereafter created, but to continue it in force as to all existing liens." This construction is sanctioned and required by the rule of law, that * Fitzpatrick v. Boylan, 57 N. Y., 493. THE NEW YOKK CITY ACT. 239 EEPEAL BY IMPLICATION. " every Statute shall be construed as having prospective operation only, unless its express letter, or clearly manifested intention, requires that it should have re- troactive effect ; and that, if all the language of the statute can be satisfied by giving it prospective opera- tion, it shall have such operation only." ' § 232. Repeal by Implication.— The Act of 1875 contains no repealing clause, but an act may be re- pealed by implication as well as by express terms. It is a well-settled rule of law, that an act of the Legis- lature relating to the same subject-matter as a previ- ous act, but providing different rules and regulations for the government of that subject-matter, necessarily works the repeal of the former act by implication, so far as the two are inconsistent.* § 233. Is the Entire Act of 1863 Repealed ?— Many of the provisions of the Act of 1863 are not repugnant to the Act of 1875. For example. Section thirteen, relat- ing to the effect of a transfer of the contract by the contractor ; Section fourteen, in relation to an execu- tory contract of sale, and Section eleven, containing the one year limitation clause, are not inconsistent, es- pecially the two former sections, with anything con- tained in the Act of 1875 ; are those provisions re- pealed by the later act ? The general principle is well settled, that to create a repeal by implication, there must be a positive re- pugnancy between the provisions of the new law and those of the old, and that even then the old law is * Eoosevelt v. Goddard, 53 Barb., 533; Dash v. Van Vleek, 7 Johns., 477, 497 ; Columbian Manufacturing Co. v. Vauderpoel, 4 Cow., 556; Livingston v, Harris, 11 Wend., 329. 240 THE ENFORCEMENT OF A LIEN. REPEAL BY IMPLICATION". repealed by implication only to the extent of the repug- nancy* But when a new statute covers the whole subject-matter of an old one, and adds oflfenses, and describes different penalties from those enumera- ted in the old law, it is by necessary implication a repeal of the former statute in toto,^ and whenever a later statute covers the same subject-matter as a for- mer one, and is so repugnant to it that the two sys- tems cannot stand together, the former entire system or statute is repealed.:^ The United States Supreme Court, in 1870, on a review of all the former authorities, held that if two statutes exist, having relation to the same subject, and the latest statute embraces all of the general provisions of the first, and also new provis- ions, and imposes different *or additional penalties, the latest statute, though having no repealing clause, oper- ates as a repeal of the earlier one,§ and wherever it is * Wood V. United States, 16 Pet., 343 ; DaTiess v. Pairbarn, 3 How., 636 ; Harrington v. Trustees of Rochester, 10 Wend., 550 ; Bac. Abr. Tit., Statutes D ; Bowen v. Lease, 5 Hill, 225, and note ; Williams v. Potter, 2 Barb., 316 ; People v. Deming, 1 Hilton, 271 ; Van Eensselaer v, Snyder, 9 Barb., 302 ; Wallace v. Bassett, 41 Barb., 93; Livingston v. Harris, 11 Wend., 329. f Norris v. Oroke'r, 13 How. U. S., 429 ; Potter's Dwarris on Statutes, 157, note. X Morlot V. Lawrence, 1 BlatcM., 608; West -B. Washington, C. C, 691 ; Ogden v. Witherspoon, 2 Hayw., 227 ; United States V. Irwin, 5 McLean, 178; Milne v. Huber, 3 Id., 212; Johnson V. Byrd, Hempst., 434; United States v. 130 Bales of Cotton, Rev. Cas., 70 ; Beals v. Hale, 4 How., 37. § United States v. Tynen, 11 Wallace, 88, and see, to the same effect, Dash v. Van Kleeck, 7 Johns., 477, 497 ; Columbian Man- ufacturing Co. V. Vanderpoel, 4 Cow., 556. THE NEW YOEK CITY ACT. 241 KEPBAL BY IMPLICATION. clear that the later of two statutes, relating to the same subjecfc-matter, was intended to prescribe the only rule which should govern in the case provided, it repeals the former act, although some of its provisions are not repugnant to it.* § 234. Same. — The Act of 1875 contains no refer ence whatever to any former law on the subject of liens, except by implication in the concluding clause of Section twenty-two, which reads: "But nothing herein contained shall affect proceedings commenced prior to that date." The first clause specifies that " this act shall take effect " July 1st, 1875. The Legis- lature thus recognized the existence of liens under a prior law, and also that the new law would, unless a contrary provision was inserted, affect proceedings under the former act. An intention to repeal the former act may thus be gained by the insertion of the usual clause where there is an express repeal. Furthermore, the new system being entire, and repugnant to the old system as an entirety, must repeal it in toto. The Court has no more power to sever and patch up the' several provisions of the two acts than it has to sepa- rate and revive some of the fragmentary provisions of an entire contract that has become void by the non- performance of other provisions of the same contract. * Dexter & Limerick P]ank Eoad Co. v. Allen, 16 Barb., 15 ; DaTiess v. Fairbum, 3 How. U. S., 636 ; Bowen v. Lease, 5 Hill, 221. PLEADINGS, PRACTICE, AND FORMS. CHAPTEE XIV. TTNDEE THE NEW TOEK CITY ACT. § 335. The Notice of Claim. The first act to be performed by the practitioner after familiarizing him^ self with the facts in a given case, and the law appli- cable thereto, is to draft the notice of claim. This should be done, if possible, before the claimant leaves the office, so that his verification may be taken and the lien filed at once. After preparing the notice accord- ing to the form hereafter set forth, a copy should be taken to be annexed to the complaint, and the lien filed with the clerk, who is entitled to a fee of ten cents. It is safest to see that the clerk minutes cor- rectly the time of filing upon the back of the notice, and to ascertain the next day whether it has been properly entered upon the lien docket in the index of the street upon which the property fronts, as an error in this respect inay be fatal to the lien. The notice of claim may be drawn up from the following form : PLEADINGS IN NEW YORK CITY. 243 PORM NO. 1. — NOTICE OF CLAIM. FORM No. 1. Notice of Claim. To William Walsh, Esq., Clerk of the City and County of New York, and to all others wliom it may concern. Take notice, That /, A. A., residing at No. 14 East Tenth Street, in the Oity of New Yorh, have a claim against B. B., the owner of the premises hereinafter described [If the claimant is a sub-contractor, state " against C. C, the contractor for the erection of the building hereinafter described "], amounting to the sum of one thousand dollars after deducting all just credits and offsets ; and that the claim is made for and on account of laior performed upon and materials fur- nished for, and to be used in the construction of a cer- tain building erected upon the premises hereinafter described ; that said labor was performed and mate- rials furnished,* for the said B. B. \^0r, in the case of a sub-contractor, " the said C. C. at the instance of the said B. B."] ; that the terms upon which the same was performed and furnished was for cash payable upon the completion thereof, % and that all the worh and ma- terials for which this claim is made has been actually performed and fu/rnished [If not, then state the amount that has been done], arid that the owner of said build- ing, appurtenances, and lot of land, is B. B., as this claimant is informed and verily believes ; that the said lot of land is situated in the City and County of New York, on the southerly side of West Eighteenth Street, between Eifth and Sixth Avenues, and is known as 244 PLEADINGS, PRACTICE, AND FORMS FOKM NO. 1. — NOTICE OF CLAIM. No. 34 WestEigJiteenth Street, tliat the following is a diagram of said premises : J L J L W. IVtli Street. 03 1 ■3 * o o 250 ft. 25 ft. 50 W. 18tli Street. n r 1 r And also take notice tliat / claim a lien upon said building andtlie appurtenances, and lot of land on whicli the same is constructed, pursuant to the provisions of an act of the Legislature of the State of New York, entitled " An Act to define and limit the Liens of Con- tractors and others upon Real Estate, in the City and County of New York, and to provide for the Enforce- ment thereof," pasvsed May 17th, 1875. Dated at New York, this 20^A day of June, 1875. (Signed) A. A., Claimant. " City and County of New York, ss. " A. A., being duly sworn, says that he is the claimant m NEW YORK CITY. 245 FOKM NO. 1. — IfOTICB OF CLAIM. mentioned in the foregoing notice of claim, that lie has read the said notice and knows the contents thereof, and that the same is true to his own knowledge. "A. A. " Sworn to before me, this 20th ) day of June, 1875. j "John Beowm", ^'■Notary Public.'''' Note A. — Where the claim is founded upon a con- tract in writing, which sets forth the terms, time given, and condition of the contract in lieu of the aver- ments, between the * and the f insert the following : " In pursuance with a contract in writing, a copy where- of is hereunto annexed and forms a part of this claim, which said contract contains a full statement of the terms, time given, and condition of the contract, under which the said labor was performed and materials fur- nished." Note B. — 'Where the claim is against several build- ings, insert after the J the following clause: "that a claim of two hundred dollars is made upon each of saidj^w houses, making in all the sum of one thousand dollars, being the sum due this claimant as aforesaid," or the following : " that I claim upon the house and lot fronting on Fifth Avenue, and known as No. 33 Fifth Avenue, the sum of six hundred dollars, and upon each of the contiguous houses and lots fronting on West Eighteenth Street, the sum of one hundred dollars." 246 PLEADINGS, PRACTICE, AND FOEMS THE SUMMON^S FOE RELIEF. FOEM No. 1. Notice of Claim. Note C. — Where the notice of claim is verified by- some person other than the claimant, that fact, together with the reasons for it, should appear therein, thus : " City cmd County of New York, ss. : " M. N., being duly sworn, says that he is the attor- ney [agent, bookkeeper, employee or otherwise, as the case may be] of the claimant mentioned in the forego- ing notice of claim, that he knows the contents of said notice, and that the same is true of his own knowledge. Deponent further says that the reason why this veri- fication is not made by the claimant is that the facts set forth and contained in said notice are peculiarly within the knowledge of this deponent. "M. N.' " Sworn to, etc." Note D. — Where the claim is made by copartners, the name and residence of each member must be in- serted thus : " Take notice that we, John Doe, resi- ding at 450 Fifth Avenue, in the City of New York, and Eichard Eoe, residing at No. 34 West Twenty- fourth Street, in said city, as copartners in business un- der the firm name and style of John Doe ndagar Passed May 12, 1873 ; three-fifths being present. The People of the State of Nexo Yorh, represented in Senate and Assembly, do enact as follows : Sect. 1. Section one of the act entitled "An Act for the better security of Mechanics and others erect- ing Buildings in the Counties of Westchester, Oneida, Cortland', Broome, Putnam, Rockland, Orleans, Niag- ara, Livingston, Otsego, Lewis, Orange, and Dutchess, passed April seventeenth, eighteen hundred and fifty- four," and as amended by Chapter 558, of the Laws 446 STATUTES. " STATE ACT " AS AMENDED Ilf 1873. of 1869, entitled, " An Act for tlie better security of Mechanics and others erecting Buildings in either of the counties of this State, except the Counties of Erie, Kings, Queens, New York, and Onondaga," is hereby amended so as to read as follows : § 1. Any person who shall hereafter perform any labor in erecting, altering, or repairing any house, building, or the appurtenances to any house or build- ing in either of the counties of this State, except the Counties of Erie, Kings, Queens, New York, Onondaga, and Rensselaer, or who shall furnish any materials therefor, with the consent of the owner, being such owner as is in this Section hereinafter described, shall, on filing with the County Clerk of the county in which the property is situate the notice prescribed by the fo.urth Section of this act, have a lien for the value of such labor and materials upon such house, building, or appurtenances, and upon the lot, premises, parcel, or farm of land upon which the same shall stand, to the extent of the right, title, and interest of the owner of the property, whether owner in fee or of a less estate, or whether a lessee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title, and interest in real estate against which an execution at law may now be issued under the general provisions of the statutes in force in this State, relating to liens of judgment and enforcement thereof; ' § 2. Section two of said act is hereby amended so as to read as follows : § 2. Whenever the labor performed or materials furnished shall be upon the credit of any contractor STATUTES. 447 "state act" as amejstded iit 1873. who shall have made a contract therefor with the owner of the property, or such person interested as aforesaid, whether such contract be oral or in writing, express or implied, or for any specified sum or other- wise, or upon the credit of any sub-contract, or the> assignee of any contractor, the provisions of this act shall not oblige the owner of the property or other person in interest as aforesaid to pay for or on account of any labor performed or materials furnished for such house, building, or appurtenances any greater sum or amount than the price so stipulated and agreed to be paid therefoi by said contract, or the value of such labor and materials, except as in the next Section pro- vided. § 3. Section three of said act is hereby amended to read as follows : § 3. If the owner, or such person in interest as afore- said, of any building for or toward the construction, altering, or repairing of which, or its appurtenances, labor, or materials shall have been furnished by con- tract, whether oral or written, shall pay to any person any money or other valuable thing on such contract, by collusion, for the purpose of avoiding or with in- tent to avoid the provisions of this act, when the amount still due or to grow due to the contractor, sub- contractor, or assignee, after such payment has been made, shall be insufficient to satisfy the demands made in conformity with the provisions of this act, the owner or other party in interest, as aforesaid, shall be liable to the amount that would have been due and owing to said contractor, sub-contractor or assignee, at the time of the filing of the notice in the first Section 448 STATUTES. "STATE act" as AMENDED IN 1873. of this act mentioned, in the same manner as if no such payment had been made. § 4. Section four of said act is hereby amended to read as follows : § 4. Within sixty days after the performance and completion of such labor, or the final furnishing of such materials, the contractor, sub-contractor, laborer, or person furnishing the same, shall file a notice in writing in the Clerk's office in the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner, or the party in interest, as afore- said, of the premises, and if in a city or'village, the situation of the building by street and number, if the street or number be known. The County Clerk shall enter the particulars of such notice in a book to be kept in his office, to be called the " Lien Docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," " owners and parties in interest," " buildings," " amount claimed," and the date of the filing of the notice, hour and minute, what proceedings have been had. The names of the owners and parties in interest and other persons against whom the claims are made shall be entered in said book in alphabetical order. A fee of ten cents shall be paid to said Clerk on filing such lien, and no lien shall attach to said land, buildings, or appurtenances unless such notice shall be filed by said Clerk; and such notice, when so filed, shall thereafter operate as an incumbrance upon said property. § 5. Section five of said act is hereby amended to read as follows : STATUTES. 449 "STATE act" as amended IN 1873. § 5. Any person performing labor, or furnishing materials, in availing Limself of the provisions of this act, shall, upon the trial, or at the assessment of dam- ages, produce evidence to establish the value of such labor or materials ; and that the same was performed for or used by the said owner or party in interest as aforesaid, or his agent, originally contractor, sub-con- tractor or assignee of such contractor, in or toward the construction, altering or repairing of such house, build- ing or appurtenances. § 6. Section six of said act is hereby amended to read as follows : § 6. Any contractor, sub-contractor, mechanic, laborer or other person performing any work or fur- nishing any materials as above provided, or the assign- ee of any such person or persons, may, after such labor has been performed or materials furnished, and filing of the notice required by the fourth Section of this act, bring an action in the Supreme Court in the county in which the property is situate, or in the County Court of said county when the amount exceeds fifty dollars, to enforce such lien, which action shall be commenced by serving a notice containing a state- ment of the facts constituting the claim and the amount thereof, and any other facts material to the case, on the owner of the property, or such party in interest as aforesaid, or his agent, as well as upon each and every claimant by whom notice of lien shall have been pre- viously filed, as well as upon any contractor, sub-con- tractor or other person having an interest in the sub- ject-matter of said claim, requiring such person or per- sons to appear in person or by attorney within twenty 450 STATUTES. " STATE ACT " AS AMEKDED IN 1873. days after such service and answer the same, and serve a copy of such ansvrer, together with a notice of any set-off or claim that he or they may have, upon the claimant or his attorney, or in default thereof, that the claimant will take judgment against said owner or other person in interest as aforesaid, for the amount claimed to be due for the labor performed or materials furnished with interest thereon and costs, and the en- forcement of said lien ; said Supreme Court and County Court shall have full power to adjust and enforce all the rights and equities between all or any of said par- ties, and enforce or protect the same by any of the remedies usual in said courts. § 7. Section seven of said act is hereby amended so as to read as follows : § 7. "Within twenty days after the service of said notice and a bill of particulars, as hereinafter provided, the defendant or defendants named therein shall per- sonally serve the claimant, or his attorney, with a copy of his or their answer or answers, and notice of set-off, or counter-claim, if any, duly verified by oath, to the effect that the same is in all respects true, or his or their default may be entered and judgment taken and enforced as hereinafter provided. § 8. Section eight of said act is hereby amended so as to read as follows : § 8. When the amount of the lien claimed is two hundred dollars or under, the claimant may commence his action, in a Justice's Court of the town or city in which the premises are located, by serving a notice upon the owner or party in interest as aforesaid, or his or their agent anywhere within this State, requiring STATUTES. 451 "STATE act" as AMENDED IN 1873. him or them to appear before a Justice of the town or city in which such premises are located, which notice shall contain a statement of the facts constituting the claim and the amount thereof, and shall require him or them to appear before said Justice in person, or by attorney, at a time certain, not less than twenty days after such service, and answer the same, or in default thereof that the claimant will take judgment against such owner or party in interest for the amount so claimed to be due, with interest thereon and costs. § 9. Section nine of said act is hereby amended to read as follows : § 9. In any case where a notice hereinbefore men- tioned cannot be served personally on such owner or party in interest, or his or their agent, by reason of absence from the State, or being concealed therein, then such service may be made by leaving a copy of such notice at the last place of residence of such owner or party in interest, and publishing a copy thereof for three weeks in succession, in a newspaper published in the city or county where the property is located ; and in case of the service of such notice by publication, then the said twenty days shall commence to run from the date of the first publication of said notice. § 10. Section ten of said act is hereby amended to read as follows : § 10. At the time of the service of said notice as hereinbefore directed, a bill of particulars of the amount claimed to be due from such owners or party in in- terest, his or their contractor or sub-contractor, verified 452 STATUTES. "STATE act" as AMENDED Ilf 1873. by the oatli of the claimant or his attorney to the effect that the same is true, shall be served as afore- said upon such owner or party in interest, or his or their agent, and all other persons made parties (if any), except that such bill of particulars need not be pub- lished with such notice. § 11. Section eleven of said act is hereby amended to read as follows •: § 11. In case said owner or other party in interest, or the person or persons upon whom such notice shall have been served, as mentioned in Section six of this act, shall not appear as required in and by the notice given in pursuance of the sixth and eighth Sections of this act, then, on filing with the County Clerk, when such action is brought in the Supreme Court or County Court, or with the Justice, when the action is before said Justice, an affidavit of the service of such notice and bill of particulars, and the failure of the owner or other party in interest, and such person or persons as aforesaid, to appear as therein required, the amount of such claim may be assessed by said County Clerk, or by the court or Justice as the case maybe ; and upon the assessment, of damages as aforesaid, judgment shall be entered upon the^ said assessment, establishing the amount of said lien, with the* costs ; execution shall thereupon issue for the enforcement and collection of said claim so adjudicated and established, in the same manner as executions upon other judgments in said courts in actions arising on contract for the recovery- of money only, except that the execution shall direct the officer to sell the right, title and interest which the owner or other person in interest had in the premises STATUTES. 453 "STATE act" as AMEKDED Ilf 1873. at tlie time of filing the notice prescribed by tbe first Section of this act. § 12. Section twelve of said act is hereby amended to read as follows : § 1.2. On the appearance of both parties before the Justice, where an action is brought before a Justice of the Peace, the owner or other party in interest as afore- said shall put in an answer in writing duly verified with a bill of particulars, or counter-claim or set-off (if any) annexed, and the issue formed by the service of the notice and bill of particulars on the part of the claim- ant, and the answer and bill of particulars on the part of the owner or other party in interest, shall be tried and governed by the same rules as other issues in Jus- tices' courts ; and the judgment thereon shall be en- forced, if for the claimant as hereby provided, and if for the owner or other party in interest, as in other ac- tions arising on contract. § 13. Section thirteen of said act is hereby amended to read as follows : § 13. When. the action is brought in the Supreme Court or in the County Court, the issue shall be formed by the service of the notice and the bill of particulars on the part of the claimant as before directed ; and the answer with a bill of particulars, set-ofi or counter- claim of the owner or other party in interest, or of any other person who has been made defendant as herein- before provided, duly verified. § 14. Section fourteen of said act is hereby amended to read as follows : § 14. At any time after the issue shall be so joined in the Supreme Court or County Court, and at least 454 STATUTES. "STATE act" as AMEls'DED ITS 1873. fourteen days before the commencement of the court, the same may be noticed for trial and put upon the cal- endar of said courts by either party furnishing the Clerk of the court with a note of issue as now required in other actions ; and the action thereafter shall be gov erned and tried in all respects as upon issues joined and judgment rendered in other actions for relief arising on money demands upon contracts in said courts ; and judg ment thereupon shall be enforced if for the claimant, as provided by this act, and if for the owner or person or persons in interest, as in other actions arising on con- tract. § 15. When such action is brought in the Supreme Court or in the County Court, such court shall have power to ascertain and declare the interests of the sev- eral claimants, if more than one, in the moneys due or to grow due from the owner or other person or persons interested in said premises, as aforesaid, and the prjior- ity and amounts of the respective liens, as well as to adjudge or decree the particular person or persons en- titled thereto, and to declare the interests of all parties who have been made parties to the proceedings, and to conclude the whole controversy in one final decision, and for that purpose to render judgment or make such order or decree in favor of or against any one or more of the parties severally or jointly as may be just, leav- ing the action to proceed against the other party or par- ties, and may order separate trials between any of the parties in its discretion. § 16. When a judgment has been rendered by any Justice in favor of a claimant, such Justice shall give a transcript thereof, which may be filed and docketed STATUTES. 455 •STATE act" as AME2>fDED IK 1873. in the office of the Clerk of the couuty where the judgment was rendered. Such transcript shall contain the full name or names of the party or parties, in Avhose favor or against whom such judgment shall be rendered, and their relation as claimant or owner, debtor or creditor, a specific description of the prem- ises afEected thereby, the amount for which such judg- ment is rendered, together with the costs incident thereto. The time of receipt of such transcript by the County Clerk shall be noted thereon, and entered on a docket, and thereupon such judgment shall become a judgment of the County Court and enforceable in all respects as provided by Section eleven of this act. § 17. All or any of the issues in such action (if brought in the Supreme Court or a County Court), or for the purpose of taking proofs therein, may be re- ferred by the written consent of the parties, or where the jjarties do not consent, the court may, upon the ap- plication of any party to such action, direct a reference thereof, in the same manner and to the same effect, in all respects, as specified in Section two hundred and seventy-one of the Code of Procedure, and such re- feree or referees shall have all the powers conferred upon referees by Sections two hundred and seventy- two and two hundred and seventy-three of said Code. § 18. Section sixteen of said act is hereby amended to read as follows : § 16. Costs and disbursements shall be allowed to either party upon the principles and by the same rules in such actions^ as are now allowed by law in actions for relief arising on contract, and shall be included in the judgment recovered therein, and the expenses in- 456 STATUTES. "STATE act" as AMENDED IN 1873. curred in serving said notice by publication, may be in Justices' Courts, and added to tbe amount of costs now allowed in said courts. When tbe action is brought in the Supreme Court or in a County Court, such direc- tion shall be made in the discretion of the court, as to the payment of costs, as shall be just and equitable, and the judgment entered shall specify as to whom and by whom the costs are to be paid. § 19. Section seventeen of said act is hereby amended so as to read as follows : § 17. A transcript of every judgment rendered un- der this act, headed " Lien Docket," shall be furnished by the Clerk of the county where rendered and dock- eted to the successful party, who may file the same with the County Clerk of any other county, and the same shall thereafter be a lien on the real property, in the county where the same is filed and docketed, of every person against whom the same is rendered, if, for twenty-five dollars or upward, exclusive of costs, in like manner and to the same extent as in other actions for the recovery of money arising on contracts, and Avhere the judgment is against the claims, the County Clerk shall enter the word " discharged " under the last head in his lien-docket, on receiving a transcript from the County Clerk or Justice that judgment has been rendered against the claimant. § 20. Section eighteen of said act is hereby amended so as to read as follows : § 18. In case the owner or his agent, or other parties in interest, shall desire to secure proofs of and from persons having claims under the provisions of this act, he may at any time give personal notice to such person STATUTES. 457 " STATE ACT " AS AMBlfDED IN 1873. or persons, or if, by reason of absence from the State, or being concealed therein, such personal service cannot be made, then such owner or party interested in such property as aforesaid, or his or their agent, may, at any time, give public notice in the same manner as notice is required to be given for sale of real estate by virtue of an execution, to all persons having claims under any of the provisions of this act against such buildings, lands, premises or appurtenances, at the time of the date of publishing such notice, to present the same, with vouchers in support thereof, to any Justice of the Peace in the city, town or village where such premises are situated, on or before a certain hour or day to be specified in said notice, and to be at least six weeks from the service or the first publication of said notice ; and in case of the failure of such person or persons to present his or their claims as required by said notice, each and every person so failing shall forever lose the benefit and be precluded of the said lien. § 21. Section nineteen of said act is hereby amended to read as follows : § 19. Whenever such owner or party in interest as aforesaid, or his or their agent, shall be proceeded against by a mechanic, contractor or sub-contractor, or any other person claiming under the provisions of this act, it shall be lawful for such owner or person in in- terest,, or his or their agent, to give the notice prescribed by the preceding Section for the presentation of claims to the court or Justice before whom the proceedings all commenced, and present as a set-off, all claims and liens thereupon presented or established, and the Justice before whom or a Judge of the court in which the pro- 458 STATUTES. "STATE act" as AMElfDED IK 1873. ceedings shall be commenced, may, upon the request of the owner or his agent, or such person interested in the premises as aforesaid, grant a stay of proceedings, sufficient to enable such notice to be given, and call in all such claims, which said claims, if established and allowed by the Justice or the court, shall be adjusted and may be a set-ofE to. such contractor's claim to the amount so allowed, or otherwise, as shall be Just, ac- cording to priority, and the court may determine and enforce any of the claims so presented, and render judgment thereupon. § 22. Section twenty of said act is hereby amended to read as follows : § 20. Every lien created under the provisions of this act shall continue until the expiration of one year, un- less sooner discharged by the court, or some legal act of the claimant in the proceedings, but if, within such year, proceedings are commenced under this act to en- force or foreclose such lien, then such lien sha;ll continue until judgment is rendered thereon, and for one year thereafter ; such lien shall also continue during the pen- dency of an appeal, and for one year after the deter- mination thereof. When a judgment is rendered as aforesaid, it may be docketed in any county of this State and enforced as if obtained in an action in a Court of Record. § 23. Section twenty-one of said act is hereby amend- ed so as to read as follows : § 21. After a judgment shall have been rendered in pursuance of the provisions of this act, either party may appeal therefrom in the same manner, and within the time appeals may now be taken in actions for the STATUTES. 459 "STATE act" as AMENDED IN^ 1873. recovery of money arising on contract, and said appeal shall be thereafter heard, governed and determined upon the same principles and by the rules that appeals in said actions are now heard, governed and determined,- vpith like costs and disbursements, and the judgment thereon enforced in the same manner as judgments on appeal are nov7 enforced and collected. Such appeal shall be had and taken only in the proceeding or action wherein judgment shall be given or rendered, but such appeal shall not be operative as a stay of proceedings or in any manner to afEect the foreclosure or action of any other claimant or claimants then pending. § 24. When any action is brought in the Supreme Court or County Court . under the provisions of this act, the court shall have power to direct that judgment be entered for any deficiency remaining after the en- forcement of the judgment originally rendered in such action against the owner or other party interested in said premises afEected thereby ; and may issue execution against other property, real or personal, of such owner or party interested as aforesaid. § 25. Section twenty-two of said act is hereby ainend- ed so as to read as follows : § 22. The liens created and established by virtue of the provisions of this act shall be paid and settled ac- cording to priority of notice filed with the County Clerk, as directed by the fourth Section hereof. § 26. Section twenty-three of said act is hereby amended so as to read as follows : § 23. All liens created by this act may be discharged as follows : First. By filing with the County Clerk a certificate of the claimant, or his successor in interest, 460 STATUTES. "state act" as amended in 1873. acknowledged or proved in tlie same manner as a con- veyance of real estate, stating that the lien has been paid or discharged. Second. By depositing with the Justice or Clerk of the court a sum of money equal to double the amount claimed, which money shall there- upon be held subject to the determination of the lien ; or, Third. By an entry of the County Clerk made in the book of liens that the proceedings on the part of the claimant have been dismissed by the court in which it is brought, or a judgment rendered against the said claimant ; or. Fourth. By an affidavit of the service of a notice from the owner or party in interest, as afore- said, or his or their agent, attorney, contractor or sub- contractor, to the claimant, requiring such claimant to commence an action for the enforcement of his lien, and the failure of said claimant to commence an action as provided by Section twenty of this act. § 27. Section twenty-f our is hereby amended so as to read as follows : . § 24. All acts heretofore passed for the better secu- rity of mechanics and others erecting buildings and furnishing materials in either of the counties of this State, except the counties of Kings, Queens, Erie, New York, Onondaga and Rensselaer, are hereby repealed ; but this act shall not be so construed as to affect, en- large, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such liens now pending by virtue of the provisions of the acts hereby repealed. § 28. This act to take effect immediately. STATUTES. 461 AMENDMENT OF 1874, Helating to Erie County. Laws of' 1874. — Chap. 551. Passed May 22, 1874. The People of the State of New Yorlc, represented m Seriate and Assembly, do enact as follows : Sect. 1. The provisions of chapter four hundred and eighty-nine of the laws of eighteen hundred and sev- enty-three, amending certain acts for the better security of Mechanics and others erecting buildings in certain counties in this State, are hereby extended and declared to be applicable to the county of Erie, except the city of Buffalo. § 2. This act shall take effect immediately. 462 STATUTES. "STATE ACT" AMENDMENT OF 1875. In relation to Improvements made v/pon Building Lots. Laws of 1875. — Chap. 233. Passed May 1, 1875; three-fifths being present. The People of the State of New YorJs, represented in Senate and Assembly, do enact as follows : Sect. 1. Section one of Chapter 489 of the Laws of 1873, entitled "An Act to amend an Act entitled 'An Act for the better security of Mechanics and others erecting Buildings in the Counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, Orange, and Dutchess,'" passed April 17th, 1854, and as amended by Chapter 558 of the Laws of 1869, entitled " An Act for the better security of Mechanics and others erecting Buildings in either of the Counties of this State, except the Counties of Erie, Kings, Queens, New York, and Onondaga," is hereby amended so as to read as follows : § 1. Any person who shall hereafter perform any labor in erecting, altering, or .repairing any house, building, or appurtenances to any house, building, or building lot, including fences, side-walks, paving, wells, fountains, fish-ponds, fruit, and ornamental STATUTES. 463 "STATE act" amendment OF 1875. trees, and every improvement vrhatever to any such house, building, or building lot in either of the counties of this State, except Kings, Queens, New York, Onon- daga, and Rensselaer, and except the City of Buffalo, or who shall furnish any materials therefor, with the consent of the owner, being such owner as is in this section hereinafter described, shall, on filing with the County Clerk of the county in which the property is situated, the notice prescribed by the foui'th Section of this act, have a lien for the value of such labor and materials upon such house, building, or appurtenances, and upon the lot, premises, parcel, or farm of land, upon which the same shall stand, to the extent of the right, title, and interest of the owner of the property, whether owner in fee or of a less estate, or whether a lessee for a term of years thereafter, or vendee in pos- session under a contract existing at the time of the filing of said notice, or any right, title, and interest in real estate against which an execution at law may now be issued under the general provisions of the statutes in force in this State, relating to liens of judgment and enforcement thereof. § 2. This act shall take effect inunediately. 464 STATUTES. KINGS COUNTY ACT OF 1853. [Repealed by the State Act Amendment of 1858, and Specifically by the Kings and Qiieens Act of 1862.] Laws of 1853.— Chap. 335. AN ACT for the better security ofMechaniGS and others, erecting Buildings, performing wor\ or fwrnishimg materials therefor, in the County of Kings. Passed June 8, 1853. The People of the State of New Yorh, represented in Senate and Assembly, do enact as follows: Sect. 1. Any person, wlio, under the authority of the owner or his agent, or any person who, in pursu- ance of an agreement with any contractor, shall per- form any labor or furnish materials for building, alter- ing or repairing any house or other building in the county of Kings, may create a lien on the building for the value of such labor and materials upon such house or building and appurtenances, and upon the lot, piece or parcel of land on which the same shall stand, to the extent of the right, title and interest, at the time ex- isting, of such owner. § 2. Such owner shall not be obliged to pay, for or on account of such house, building or appurtenances, in consideration of all the liens authorized by this act, any greater sum or amount which such owner would STATUTES. 465 KINGS COUNTY A(JT OP 1853. be otherwise liable to pay for such erection, alteration or repair, except in the case hereinafter provided. § 3. In order to create such lien, a notice must be filed with the Clerk of the county of Kings, setting forth briefly the following particulars : The amount of the claim, the name of the person against whom the claim is made, the owner of the building, and the location thereof, and, if in a city or village, the street on which it is situated, or by some certain or known designation. § 4. The Clerk shall file said notice in the same man- ner and it shall have the same effect as a notice of the pendency of an action affecting title to real property ; and from the time of filing, the claimant shall have a lien on the land and building, and such filing shall be constructive notice to a purchaser or incumbrances of the property affected thereby ; but such notice must be filed with the Clerk of said county before the ex- piration of thirty days after the completion of the work, or within sixty days after the materials are fur- nished or supplied, and a copy of said notice shall be served on said owner or said contractor, by delivering the same to him personally, or by leaving it at his res- idence with a person of suitable age^and discretion, or by depositing it in the post office, directed to him or them at his or their usual place of residence, postage paid, which said notice and service shall have the same effect as an injunction order issued by any Judge or Justice of any Court of Record in this State. § 5. The claimant shall bring an action, to enforce said lien, against such owner or contractor within three months after the filing of the notice required by the 466 STATUTES. EBKSS^LAEK ACT (1865.) third Section of this act, or within thirty days after a notice shall he serv^ed on such claimant, requiring him to bring such action, by the owner or contractor; and when action brought, notice thereof shall be filed with the County Clerk, specifying the court wherein it has been commenced, and, if before a Justice of the Peace, the name and residence of said Justice, and said Clerk shall enter the same in connection with the notice of lien. § 6. Any lien created under this act shall be brought to a close, or may be discharged as follows : 1. By filing a certificate of the claimant or his as- signee, acknowledged or proved in the same manner as the satisfaction of a mortgage, stating that the amount of said lien is paid or discharged ; or, 2. By the deposit with the Clerk of a sum of money equal to the amount claimed, which money shall there- upon be held subject to the lien ; or, 3. By an entry of the Clerk, made after the lapse of three months since the filing of the claim, stating that no notice has been given to him of legal steps to en- force the lien ; or, 4. By a notice from the owner to the claimant, re- quiring him to commence an action for the enforcement of his lien, and the lapse of thirty days thereafter without the commencement of such action ; or, 5. By satisfaction of the lien upon an action for the enforcement thereof. § 6. By the owner or contractor entering into an un- dertaking to the claimant, in double the amount of the claim, with two good and sufficient sureties, who shall be freeholders of said county, for the payment to the STATUTES. 467 KINGS COTTNTT ACT OF 1853. claimant of any sum lie may recover in any action that may be brought to enforce the lien created under this act,' which sureties shall justify, on notice to said claim- ant, as bail in personal actions, before a Justice of the Supreme Court, or the County Judge, or a Judge of any Court of Record in said county ; and on such Jus- tice or Judge approving of such sureties he shall order a discharge of said lien, and on filing the same with the County Clerk he shall enter a discharge of said lien, specifying that the same is done by security, as herein mentioned. § 7. All actions brought to enforce a lien under this act shall be governed and tried under the same rules •of law and evidence, and the judgment therein en- forced, in all respects, in the same manner as upon ac- tions arising on contract. § 8. On the recovery of a judgment by any claimant against the contractor, the owner shall pay the same out of any moneys in his hands that was due at the time of filing the lien or that became due thereafter ; or if the amount shall not be sufficient fully to satisfy said lien, then such owner shall pay the amount so in his hands. § 9. In cases where any person other than the con- tractor shall desire to create alien under the provisions of this act, and the owner or his agent shall serve a notice on the claimant, in the manner herein described for the serving of notices, stating thereon that he does not owe the contractor the amount claimed, and speci- fying the amount due by him, if any, to such contract- or ; such owner may apply to the County Judge, in cases where the amount claimed shall not exceed one 468 STATUTES. KINGS COUNTY ACT OB 1853. hundred dollars, or where it exceeds that amount to a Justice of the Supreme Court, or any Judge of any Court of Record in said county, who, on sufficieiit cause shown by aj0&davit or petition, shall grant an order re- quiring the claimant to show cause, at some certain time and place to be named in such order, why the lien should not be discharged of record, and the prop- erty on which the lien is claimed released therefrom ; that a copy of such order and the papers on which the same was granted shall be served on the claimant at least ten days before the return thereof ; that on the return of said order the same proceedings shall be had as on a motion to dissolve an injunction order, issued in any action pending in a Court of Record, and the de- cision thereon be subject to appeal in like manner ; and where the proceedings shall be before the County Judge, an appeal shall be had to a Justice of the Supreme Court, and be heard at Special Term. STATUTES. 469 KINGS AND QUEENS' ACT OP 1862. [In Force.] Laws of 1862.— Chap. 478. AN ACT /or the better secv/rity of Mechanics, Laborers and others who perform labor or furnish Materials for Buildings and other improvements on land in the Counties of Kings and Queens. Passed April 24, 1862 ; three-fiftlis being present. The People of the State of New Yorh, represented m Senate and Assembly, do enact as follows : Sect. 1. Any person wlio shall hereaiter perform any labor or furnish any materials in building, altering or repairing any house, building or other improvement upon lands or appurtenances to such house or other building, by virtue of any contract with the owner thereof, or his agent, or with any contractor or sub-con- tractor, or any person permitted by the owner of such lands to build, repair, alter or improve as aforesaid with- in the counties of Kings or Queens, shall, upon filing the notice prescribed in the third Section of this act, have a lien for the value of such labor and materials upon such house, building and appurtenances, and upon the lot of land upon which the same stand, to the ex- tent of the right, title and interest at that time exist- ing, of such owner, in the manner and to the extent 470 STATUTES. KINGS AND queens' ACT OF 1863. hereinafter provided ; but sucli owner shall not be obliged to pay for or on account of such house, other building or appurtenances, in consideration of all the liens authorized by this act to be created, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by such contract, except in the case hereinafter provided. But if any such owner contractor, or sub-contractor, or agent for either of them shall pay any person any money on any contract for building or repairing any building by collusion, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract, and the amount still due the contractor or his assigns after such payment has been made, shall be insufficient to satisfy the demands made in conformity to the provisions of this act, the owner shall be liable to the amount that would have been due and owing to said contractor or his assignee at the time of the filing of the notice made in the third Section of this act, in the same manner as if no such 'payment had been made. In cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the owner within the meaning and intent of this act, until a deed shall have been actually delivered so as to pass the fee simple of said promise. § 2. Any claimant, under or by virtue of any such lien or any such notice, may, after such labor has been performed or materials furnished, and after the filing of the notice mentioned in the third Section of this act, enforce or bring to a close such lien, by a civil ac- tion in a Court of Record in the city or county in STATUTES. 471 KINGS AND queens' ACT OF 1862. which such lands or any portion of them may be sit- uated ; subject, however, to the following provisions and restrictions, namely : First. The manner and form of instituting and pros- ecuting any such action to judgment, including the per- sonal service of process therein shall be the same as in other civil actions in the court in which the same may be brought except as herein otherwise provided. Second. The summons shall be in the form and man- ner and as required by the second sub-division of Sec- tion one hundred and twenty-nine of the Civil Code of Procedure. Third. The claimant under said lien, who shall be ■ the plaintiif in the action, shall annex to his complaint or set forth therein, a copy of the notice mentioned in the third Section of this act, and demand an account- ing and settlement in such court of the amount due or claimed to be due for the labor performed or materials furnished as aforesaid, and such complaint shall contain such other matter and allegations as may be material and proper to establish the claim and cause of actioji of the claimant and plaintiff. Fourth. The pleadings shall be in manner, form and substance the same as required by law in civil actions and in accordance with the rules and practice of the court in which the action may be brought, and such action shall be brought to an issue and to trial, put upon the calendar, tried, judgment had and entered, and appeal be taken therefrom, and costs taxed and recovered pursuant to such law, rules and practice in such civil actions in which the summons is, as men-- tioned in subdivision two of this Section, and such ac- 472. STATUTES. KINGS AWD queens' ACT OF 1863. tion shall be governed and the judgment thereon en- forced in the same manner as upon issues joined and judgments rendered in all other such civil actions aforesaid. § 3. Within three months after the performance of such labor, or the furnishing of such materials, the con- tractor, sub-contractor, laborer, person furnishing mate- rials, or other claimant, shall serve a notice in writing upon the County Clerk of the county, or counties afore- said, in which the land and premises, or any portion thereof, may be situated, specifying the amount of the claim and the person against whom the claim is made, the name of the owner of the building, and the situation of the building by its street and number, if the number be known. The said County Clerk shall enter the par- ticulars of such notice in a book to be kept in his office, to be called the " Lien Docket," which shall be suitably ruled in columns, headed " claimants," " against whom claimed," " owners," " building," " amount claimed," " date of notice, hour and minute," and " what proceedings have been had." The names of owners and persons against whom the claim is made shall be inserted in alphabetic order. A fee of ten cents shall be paid to the County Clerk on filing such lien. A copy of said notice shall be served on said owner by delivering the same when personally, or if he be out of this State by delivering the same to his agent personally ; and after such service such owner shall not be protected in any payments made by him to such contractor or other claimant in this Section specified. S 4. In case the defendant or defendants shall not STATUTES. 473 KINGS AND QXTEENS' ACT OF 1863. answer the plaintiff's complaint within the time, and as required by law, the plaintiff may apply to the court on proof of the service of the summons and complaint, and that no answer has been served, as required by the summons, for a writ of inquiry, and the same may be issued to the Sheriff of the county in which the action may be brought to assess the amount of such claim, or the amount of such claim may be assessed by the court, and upon the return of the writ of inquiry or the assessment by the court, judgment shall be entered upon the same and execution shall issue for the en- forcement of said claim, so adjudicated and established in the same manner as in analogous cases upon other judgments in such court. § 5. A transcript of every judgment rendered, headed " Lien Docket," shall be furnished by the Clerk ' of the court to the successful party, who may file the same with the County Clerk, whose duty it shall be to enter the name of the court and the amount of the judgment, or when the judgment is against the claim- ant, after the expiration of thirty days if no appeal has been taken, the word discharged under the last head in his docket. § 6. Costs shall be allowed upon the same principles and by the same rules in the action as they are now allowed by statute in civil actions aforesaid, and shall form a part of the judgment except in cases where the amount of the recovery is less than fifty dollars, no more costs than damages shall be allowed to the party recovering such judgment. § 7. The lien may be discharged as follows : 1st. By filing a certificate of the claimant or his sue- 474 STATUTES. KINGS AKD queens' ACT OF 1862. cessor in interest, acknowledged or proved in the same manner as the satisfaction of a mortgage, stating that "the lien is discharged. 2d. By the deposit with the Clerk, if before suit, of a sum of money equal to the amount claimed, or, after suit, equal to such amount and the amount of costs in- curred, which money shall thereupon be held subject to the lien. 3d. By an entry of the Clerk made in the book of liens, after one year has elapsed since the filing of the claim, stating that no notice has been given to him of legal steps to enforce the lien. 4th. By an affidavit of service of a notice from the owner to the claimant, requiring him to commence an action for the enforcement of his lien, on or before a certain hour, a day specified in said notice, and the lapse of thirty days thereafter without any affidavit from the claimant being filed of the issuing or service of the summons and complaint in an action for an en- forcement of such lien. 5th. By the satisfaction of the lien, or a final judg- ment in an action for the enforcement thereof. § 8. Every lien created under this act shall continue until the expiration of one year from the creation thereof, and until judgment rendered in any proceed- ings for the enforcement thereof. § 9, Whenever judgment shall be rendered in favor of the claimant in any proceeding commenced under this act, such judgment shall direct the sale of the in- terest of the owner in the land and premises upon which the lien exists, to the extent of the right of such owner at the time of the filing of the notice of lien in STATUTES. 475 KI]JGS AND queens' ACT OE 1863. pursuance of this act, and that the proceeds of such sale shall be applied to the payment of the costs of the action and proceeding, and of the amount found to be due to such claimant or plaintiff, and that the resi- due of such proceeds be paid to the Clerk of the Court in which such action or proceeding may have been instituted, to abide the further order of the court. § 10. The owner may apply to the court for an order directing the Clerk to pay him the surplus pro- ceeds of such sale so paid to the said Clerk, upon pro- ducing the certificate of the County Clerk of the county or counties in which any portion of said land and premises may be situated that there are no liens dock- eted in his office against or affecting the said premises which have been filed under this act, and which remain ijnsatisfied. § 11. If it shall appear that there other liens on file with the Clerk of either of said counties affecting the said premises, notice of such application shall be given to the claimants respectively filing the notices creating such liens, and thereupon the said court shall distribute such surplus proceeds among the parties entitled there- to, according to their respective rights and priorities, and may order a reference to take proofs in relation to such rights and priorities. § 12. In all sales under Judgments to be rendered in these proceedings, the interest of the owner shall be sold subject to all prior liens existing thereon, unless the claimants under such liens shall be made parties to the proceedings, in which case the court shall settle the rights of the respective claimants, and the payment 476 STATUTES. KINGS AND queens' ACT OE 1863. of the owner of any valid lien, or of any judgment recovered in pursuance of this act, shall enure to him as a payment to the amount thereof to the contractor or sub- contractor, as the case shall be. § 13. When the action or proceedings are com- menced by a person having a claim against a contract- 1 or, with the owner, or against a sub-contractor with the contractor or other sub-contractor, such contractor or sub-contractor may be made a defendant with such owner, and Judgment may be rendered against the con- tractor or sub-contractor for the amount which shall be found owing by him, in addition to the judgment hereinbefore provided for against such owner, and the court may award costs against such of the parties as shall be just. § 14. Chapter three hundred and thirty-five of the Laws of eighteen hundred and fifty-three, entitled " An Act for the better security of Mechanics and others erecting Buildings, performing work or furnishing Ma- terials, in the County of Kings," passed June eighth, eighteen hundred and fifty-three, and chapter two hundred and four of the Laws of eighteen hundred and fifty-eight, passed April fourteenth, eighteen hun- dred and fifty-eight, so far as the same applies to the counties of Kings and Queens, aforesaid, are hereby repealed. § 15. This act shall take effect immediately. STATUTES. 477 ONONDAGA ACT— (1864). [In force as amended in 1866.] Laws of 1864. — Chap. 366. AN ACT for the letter secwrity of Mechanics cmd others erecting Buildings and fm-nishing Materials therefor, in the County of Onondaga. Passed April 25, 1864 ; three-fifths being present. The People of the State of New Yorle, represented in Senate and Assembly, do enact as follows : Sect. 1. Any person who shall, in pursuance of any contract, express or implied, either with the owner of the property or any contractor, perform any labor or furnish any materials in building, altering, or repair- ing any house or other building, or appurtenances to any house or other building, in the County of Onon- daga, to the amount of twenty dollars or over; or any person who has made a contract for the same, shall, until the end of three months after the performance of such labor or furnishing materials, be deemed to have an equitable lien for the same upon such house or building or appurtenances, and the land upon which the same may be situated. § 2. As against the owner of the property himself, no notice shall be necessary to establish such lien. As against all other persons who have no actual notice thereof, the only evidence which shall be necessary for 478 STATUTES. ONOSTDAGA ACT — (1864). a party to signify that he claims such lien shall he the filing of a notice with the County Clerk of the County of Onondaga, at any time while the business is pro- gressing, or within the said period of three months, which shall state the nature of the claim, whether for labor or material; the premises on which he claims the lien, and the lot or block of which they form a part; the amount thereof, and the date from which he claims it to have commenced ; and as the work progresses, the party may secure successive liens by giving notice as aforesaid. The Clerk shall docket the notice in a book to be provided for that purpose, and his fee therefor shall be twenty-five cents. § 3. The filing of such notice shall not prejudice the rights of any bona fide purchaser, or incumbrancer for value, whose purchase or incumbrance was made before the filing of such notice, and who had no actual knowledge of the lien claimed. Upon the foreclosure of any such lien, if the amount of the claim established be fifty dollars or over, the plaintiff shall recover his costs and disbursements according to the samq rates as in suits for the foreclosure of mortgages. If the amount be less than fifty dollars, then the plaintiff shall recover for costs and disbursements one-half as much as the amount so established as aforesaid, and no more unless it should be necessary to' sell the premises, in which case the fees of the ofiicer selling shall be the same as upon the sale of mortgaged premises under a decree for foreclosure and sale. § 4. At any time within six months after the com- pletion of the work or furnishing materials, or after the claim is dae, if time is given, the claimant or his STATUTES. 479 ONONDAGA ACT — AMENDMENT OP 1866. assigns may institute proceedings for the foreclosure of said lien in the general manner now provided by the general lien law of the State. § 5. This act shall take effect immediately. ONONDAGA ACT— AMENDMENT OP 1866. Relating to Payments made hy the Owner to the Contractor. Laws of 1866, — Chap. 788. {Title Omitted?^ Passed April 24, 1866. The People of the State of New Yorh, represented in Senate and Assembly^ do enact as follows : Sect. 1. The act entitled " An Act for the better security of Mechanics and others erecting Buildings and furnishing Materials therefor, in the County of Onon- daga," passed April twenty-fifth, one thousand eight hundred and sixty-four, is hereby amended by adding at the end of the second section thereof the following words, viz. : " When such labor or material is performed or fur- nished to a contractor or sub-contractor, all payments made by the owner to ..either, in good faith, to apply 480 STATUTES. EENSSELAEB ACT (1865). on his contract, shall operate to extinguish the lien aforesaid, unless written notice of the lien is served on the owner of the premises before such payment, stating that the same is then or immediately there- after will be claimed. When the owner is compelled to discharge liens under this act, he shall have the right to deduct the amount of the same from the contract price of the contractor or sub-contractor, for whom the labor was performed or material fur- nished. § 2. This act shall take effect immediately. RENSSELAER ACT OF 1865. [In Force.] Laws of 1865.— Chap. 778.* AN ACT/or the hetter security of Mechanics and others erectmg, altering^ or rejpavrvng Buildings and furnish- i/ag Materials therefor, in the County of Rensselaer. Passed June 26, 1865. The People of the State of New Yorh, represented in Senate and Assembly, do enact as follows : Sect. 1. Any person who shall hereafter perform any labor, and any person who shall furnish any materials, in erecting, altering, or repairing any house, * This Act not being signed by the Governor in time to bind with the Session Laws of 1865, will be found in the Laws of 1866. STATUTES. 481 EENSSBLAER ACT (1865). building, or additions and appurtenances to any house or building in the County of Eensselaer shall, on filing with the Town Clerk of the town in which the property is situated, or, if situated in the City of Troy, then with the Clerk of the County of Eensselaer, the notice prescribed by the fourth section of this act, have a lien for the value of such labor and materials upon such house or building or additions and appurte- nances, and upon the lot, parcel, or farm of land upon which the same shall stand, to the extent of the right, title, and interest of the owner of the property exist- ing at the time of filing the said notice. § 2. Whenever the labor performed and materials furnished shall be upon the credit of any contractor who shall have made a contract therefor with the owner or his agent of the property, or upon the credit of any sub-contractor or assignee of any contractor or sub-contractor, the provisions of this act shall not oblige the owner or his agent of the property to pay for or on account of any labor performed or materials furnished for such house, building, or additions and appurtenances any greater sum or amount than the price stipulated and agreed to be paid therefor in and by said contract, except as in the next Section pro- vided. § 3. If the owner or his agent of any house, build- ing, additions s^nd' appurtenances erected, altered;, or repaired by any contract, express or implied,, shall pay to any person, on such contract, by coll asion, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract, and the amount still due the contractor or his assignee, after 482 STATUTES. BENSSELAER ACT (1865.) such payment has been made, shall be insufficient to satisfy the demands made in conformity to the provis- ions of this act, the owner or his agent shall be liable to the amount that would have been due and owing to said contractor, sub-contractor, laborer, or persons fur- nishing materials at the time of the filing of the notice mentioned in the first Section of this act, in the same manner as if no such payment had been made. § 4. At the time of the commencement of such labor or furnishing such materials, or at any time dur- ing the progress of such labor and furnishing such materials, or within thirty days after the performance and completion of such labor or the final furnishing such materials, the contractor, sub -contractor, laborer, or person furnishing materials shall serve a notice in writing upon the Town Clerk of the town where the property is situated, and if the property is located in the City of Troy, then upon the Clerk of the County of Rensselaer, specifying the nature and amount of work performed, or the materials furnished or to be fur- nished, and the persons against whom the claim is made, the name of the owner or his agent of the building ; and if in the City of Troy or any village in the county, the situation of the building, by street and number, if the street be known. The Town Clerk or the County Clerk, as the case may be, shall enter the particulars of such notice in a book to be kept for that purpose in their respective offices to be called the " Mechanics' and Laborers' Lien Docket," in which shall be entered alphabetically the names of the owners of the prop- erty and opposite to them the names of the contractor, STATUTES. 483 KEKSSELAER ACT (1865.) sub-contractors, laborers, or other persons claiming a lien and a sufficient description of the premises on which such work is, or to be done, or materials are or to be furnished, and the day and time of filing and entering the notice of such lien. And the fees of the clerks for filing and entering such lien shall in each case be fifty cents ; and no lien shall attach to said lot, buildings, and appurtenances unless such notice be served and filed and entered by said town or county clerks, as the case may be, and said lien when so filed- and entered shall thereafter operate as a lien and in- cumbrance upon such house, building, and appurte- nances, and upon the lot, parcel, or farm of land upon which the same shall stand, except that no lien so filed and entered by any person other than the con- tractor shall be effective unless a copy of such notice so filed and entered is served on such owner or his agent personally or by leaving the same with some person of competent age at the place of residence of such owner or his agent within five days after the filing and entry of said notice' with the Clerk of the town or county as the case may be. § 5. Any person performing labor or furnishing materials, in availing himself of the provisions of this act shall, upon the trial or at the assessment of dam- ages produce evidence to establish the value of such labor or materials, and that the same was performed or used in the erection, altering, or repairing of such house, building, additions, and appurtenances. § 6. Any contractor, sub-contractor or laborer per- forming any work, or any person furnishing any materials as above provided, may, after such work and 484 STATUTES. EEirSSELAEB ACT (1865). labor has been performed or materials furnislied, and the service of tbe notice required in tbe f ourtb Section of this act, bring an action in the Supreme Court, in the County of Rensselaer, or in the County Court of said county, when the amount exceeds fifty dollars, to enforce said lien, which said action shall be commenced by serving a summons containing a full and particular statement of the facts constituting the nature of the claim and the amount thereof on the owner or his agent of the property, requiring the said owner to ap- pear and answer the same, and to serve a copy of such answer, together with a notice of any set-off that he may have within twenty days after the service of said summons, exclusive of the day of such service, on the claimant or his attorney ; or in default thereof the claimant will take judgment against the said owner for the amount claimed to be due for the work and labor performed or the materials furnished, with inter- est thereon and costs of the action. To which said summons shall be annexed and. served with said sum- mons a bill of particulars of the amount claimed to be due from such owner, his contractor or sub-contractor or assignee, verified by the oath of the claimant to the effect that the same is in all respects just and true. § 7. Within twenty days after the service of said summons and bill of particulars, the defendant in said summons shall serve the claimant or his attorney with a copy of his answer and notice of set-off, if any he has, duly verified by the oath of the owner or his agent or contractor, to the effect that the same is in all respects just and true, or in default thereof judg- STATUTES. 485 KENSSELAEK ACT (1865). ment may be entered and enforced as hereafter provided. § 8. When the amount of the lien claimed is for one hundred dollar's or under, the claimant may commence such action before a Justice of the Peace of the town in which the premises is situated, and if located in the City of Troy, then in the Justice's Court of said city, by serving a summons personally upon the owner or his agent, requiring such owner to appear before a Justice of the town in which the property is situated, or in the Justice's Court of said, city if located therein, which said summons shall contain a statement of the facts constituting the claim and the amount thereof, and shall require such owner to appear before said Justice or in said Justice's Court, at a time certain not less than twenty days after such service, and answer the same, or in default thereof that the claimant will take judgment against such owner for the amount so claimed to be due, with interest thereon and costs, and at the time of the service of the summons in this Section mentioned, a bill of particulars of the amount so claimed to be due to the claimant, duly verified, shall be annexed to and served with said summons. § 9. In case the said summons in either of the sixth or eighth Sections of this act cannot be served person- ally on such owner or his agent by reason of his ab- sence from the State or county, as the case may be, or being concealed therein, then such service may be made by leaving or mailing a copy of such summons, with such bill of particulars annexed, at the last known place of residence of said owner or his agent, and publishing a copy of said summons only once in 486 STATUTES. RENSSELAEE ACT (1865.) each week for three weeks successively in a newspaper published in the county where the property is situa- ted ; and in case of the service of such summons by publication, then the said twenty days to answer shall commence to run from the last day of the publication of said summons. § 10. In case said owner shall not appear as required in and by the summons given in pursuance of the sixth and eighth Sections of this act, then on filing with the County Clerk, when the action to enforce the claim is brought to the Supreme Court or County Court, or with the Justice or in the Justice's Court of the City of Troy. When the action is before the said Justice or in said Justice's Court, an affidavit of the service of said summons and bill of particulars, and the failure of the owner of the property to appear as therein re- quired, the amount of such claim may be assessed by the said County Clerk if the action is in the Supreme Court or County Court, and if before a Justice or in the said Justice's Court, then by such Justice or said Justice's Court, and upon the assessment of damages as aforesaid. Judgment shall be entered upon said as- sessment establishing the amount of said lien, with the costs and disbursements, and execution shall thereupon issue for the collection and enforcement of said claim, so adjudicated and established in the same manner as executions upon other judgments in said courts, in ac- tions arising on contract for the recovery of money, only except that the execution shall direct the officer to sell the right, title, and interest which the owner had in the premises at the time of filing the notice prescribed in the fourth Section of this act or at any time thereafter. STATUTES. 487 EEITSSELAEK ACT (1865.) § 11. On the appearance of botli parties before the Justice, or in said Justice's Court, the owner shall put in an answer in writing, duly verified, with a bill of particulars of his set-off (if any) annexed, and the issue formed by the service of the summons and bill of particulars on the part of the complaint and the an- swer and bill of particulars of set-off on the part of the owner shall be tried and governed by the same rules as other issues in Justice's Court, and the judg- ment therein shall be enforced, if for the claimant, as provided by the tenth Section of this act, and if for the owner, as in other actions arising on contract. § 12. When the action is brought in the Supreme Court or in the County Court, the issue shall be formed by the service of the summons and the bill of particulars on the part of the complainant as hereto- fore directed, and the owner's answer, with a bill of particulars of set-off, if any, duly verified, annexed to said answer. § 13. At any time after the issue shall be so joined in the Supreme Court or County Court, and at least fourteen days before the commencement of the court, the same may be noticed for trial and put upon the calendar of said courts by either party furnishing the Clerk of the court with a note of issue as now re- quired in other actions, and the same shall be governed and tried in all respects as other issues Joined, and Judgment rendered in other actions arising on money demands upon contracts in said courts, and the Judg- ment thereupon shall be enforced, if for the claimant, as provided hj the tenth Section of this act, and if for the owner, as in other actions arising on contract. 488 STATUTES. EElfrSSELABB ACT (1865.) § 14. Whenever a judgment stall be rendered against the owner and in favor of any person for the performance of any labor, or for the furnishing of any materials, and the owner have funds in his possession due to the contractor, the costs and disbursements of the proceedings shall be deducted from such funds, unless otherwise directed by the court in which the action is brought. § 15. Costs and disbursements shall be allowed to either party upon the principles and by the same rules in such proceedings as they are now allowed by law in actions arising on contract and shall be included in the .judgment recovered ; and the expenses incurred in serving said summons upon the owner by publica- tion shall be allowed by the Justice or in the said Jus- tice's Court and added to the amount of costs now al- lowed in Justices' courts. § 16. A transcript of every judgment under this act, headed " Lien Docket," shall be furnished by the Clerk of the county to the successful party, who may file the same with the Clerk of any other county in this State, and the same shall thereafter be a lien on the real prop- erty in the county where the same is filed and docketed" of every person against whom the same is rendered, in like manner and to the same extent as to other actions for the recovery of money arising on contract when the judgment is against the claimant, and the Town Clerk or County Clerk, as the case may be, shall enter the word " discharged " under the last head of his lien docket on receiving n transcript from the Justice or said Justice's Court that judgment has been rendered against the claimant, or, if in the Supreme Court or STATUTES. 489 EENSSELAEB ACT (1865.) County Court, upon filing and docketing sucli judg- ment against the claimant. § 17. Such owner or his agent may at any time give public notice in the same manner as, notice is required to be given for the sale of real estate by virtue of an execution to all persons having claims under any of the provisions of this act, against such house, building, or additions and appurtenances at the time of the first publication of such notice, to present the same with vouchers in support thereof, to any Justice of the Peace in the town where such building is situated, or, if lo- cated in the City of Troy, at the office of the Clerk of said county, on or before a certain day and hour to be specified in said notice, and to be at least two weeks from the first publication thereof, and, in case of the failure of any person or persons to present such claims, as required in and by said notice, each and every person so failing shall forever lose the benefit and be precluded of the said lien. § 18. Whenever such owner or his agent shall be proceeded against by a contractor, pursuant to the pro- visions of this act, it shall be lawful for him to give the notice prescribed by the preceding Section and pre- sent as a set-off all claims and liens thereupon presented and established, and the Justice before whom or the court in which proceedings shall be commenced may, upon the request of the owner or his agent, grant a stay of proceedings sufficient to enable the owner or his agent to give such notice and call in all such claims, which said claims, if established and allowed by the Justice or court, shall be a set-off to such contractors claimed to the amount so allowed. 490 STATUTES. EENSSBLABK ACT (1865.) § 19. Every lien created under the provisions of this act shall continue' until the expiration of five years, unless sooner discharged by the court or some legal act of the claimant in the proceedings. But, when a judgment is rendered therein and docketed with the County Clerk, it shall be a lien upon thp real property of the person against whom it is obtained to the extent that other Judgments are now made a lien thereon. § 20. After a Judgment shall have been rendered in pursuance of the provisions of this act, either party may appeal therefrom in the same manner and within the time appeals may now be taken in action for the recovery of money arising on contract ; and said, appeal shall be thereafter heard, governed, and determined upon the same principles and by the same rules that appeals in said actions are now heard, governed, and determined, with like costs and disbursements, and the Judgment thereon enforced in the same manner as Judgments on appeals are now enforced and col- lected. § 21. The liens created and established by virtue of the provisions of this act shall be paid and settled ac- cording to the priority of the notice filed with the Town Clerk or County Clerk, as described by the fourth Section of this act. § 22. All liens created by this act may be dis- charged as follows : 1st. By filing with the Town Clerk or County Clerk, as the case may be, a certificate of the claimant or his successors in interest, acknowledged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharg- ed; or, 2d, By depositing with the Justice or the STATUTES. 491 EENSSBLABK ACT (1865.) Clerks of tlie court a sum of money equal to double the amount claimed, wMcli money shall be thereupon held, subject to the determination of the lien ; or, 3d. By an entry of the Town Clerk or County Clerk, as the case may be, made in the book of liens, that the pro- ceedings on the part of the claimant have been dis- missed by the Justice or court in which it is brought, or a judgment rendered against the said claimants; or, 4th. By an affidavit of the service of a notice from the owner or his agent, attorney, contractor, or sub-con- tractor to the claimant, requii-ing such claimant to commence an action for the enforcement of said lien within twenty days after service of said notice and the failure of said claimant to commence an action as aforesaid. § 23. All acts heretofore passed for the better security of mechanics and others erecting buildings and furnishing materials, so far as the same are appli- cable to the County of Rensselaer, are hereby repealed ; but this act shall not be so construed as to afEect, enlarge, invalidate, or defeat any lien or right to a lien now existing, or any proceeding to enforce such liens now pending by virtue of any of the provisions of the act hereby repealed. § 24. This act shall take effect imme^diately. 492 STATUTES. GENERAL PROVISIONS APPLICABLE TO ALL ACTS PASSED PRIOR TO 1870 AND 1872. Laws of 1870.— Chap. 529. AN ACT in relation to Mechanics^ Liens. Passed May 2, 1872. Sect. 1. The provisions of the laws relating to me- chanics' liens heretofore passed, shall apply to bridges and trestle work erected for railroads, and materials furnished therefor, and labor performed in constructing said trestle work, and other structures connected there- with, and the time within which said liens may be filed shall be extended to ninety days from the time when the last work shall have been performed on said bridges, trestle work, and structures connected there- with, or the time from which said materials shall have been delivered. This act shall apply to all uncom- pleted work commenced previous to the passage of this act. § 2. This act shall take effect immediately. STATUTES. 493 GEN-ERAL PEOVISIOKS. Laws of 18^2. — Chap. G69. AN ACT in relation to Mechanics' Liens. Passed May 13, 1872. Sect. 1. All tLe provisions of the laws relating to mechanics' liens heretofore passed shall apply to wharves, piers, bulkheads, and bridges, and. materials furnished therefor, and labor performed in construct- ing said wharves, piers, bulkheads, and bridges, and other structures connected therewith, and the time within which said liens may be filed shall be thirty days from the time when the last work shall have been performed on said wharves, piers, bulkheads, and bridges, and structures connected therewith, or the time from which said material shall have been deliv- ered. This act shall apply to all incomplete work commenced previous to the passage of this act. § 2. This act shall take effect immediately. INDEX. ABANDONMENT OF CONTRACT. Page By Contractor, avoids the lien 73 Eights of sub-contractors 74 When excused by act of owner 77-79 Effect of owner's failure to make regular payments 79 By Owner, effect of 79 ACCOUNTS. Ovbb-Statembnt of, in Notice of Claim. Mis-statement of credits usually avoids the lien 177 The Massachusetts rule 177 How changed by statute 178 Application of same 178, 180, 181 Not invalidated by including non-lieu claim 179 Nor by including accrued interest 179 Mis-statement of debts must be intentional to invalidate lien 179-180 Amount of, must be stated in notice of lien 204 Or lien will be void 205 ACTION. See Practice. ACTS. See Statutes. ADDITIONAL SECURITY. A waiver of lien 152 And see Waiver. ADDRESS. Of notice of lien 203 ADMINISTRATORS. See Executors. ADJUDICATION IN BANKRUPTCY. Effect of on prior liens. See Bankruptcy. ADVANCEMENT OF MONEY. Does not create lien 84 Does under civil law 9, 10 AFFIDAVITS. See Forms. AGENCY. Facts necessary to constitute 43-45 Proof of husband's 40-42 AGENT. Of owner not entitled to lien 20 Of material-man must file in the name of principal 20 Of wife, husband may be.. . . ; 89 496 INDEX. AQENT.— Continued. Page Binds owner though acting personally 40 General, cannot charge real estate with lien 44 Special authority from owner necessary to constitute 44 Architects and Superintendents special agents of owner 45 Notice of lien may be served on, under State Act 321 AGREEMENT. See Contracts. Of Sale, vendee is owner under, when statute is silent 28 Effect of conditions in 29 Effect of the rule 29 The rule under the Kings and Queens Act 30 To Lease, effect of 49 ALLEGATIONS. In Notice op Libn. See Notice. In Pleadings. See Practice. AMENDMENT. Op Notice op Lien, not permitted 201 Op Statutes. See Statutes. AMERICAN SYSTEM of Liens 12 When and how originated 13 AMOUNT OP Lien. Effect of over-statement 179 Must be fraudulent to avoid the lien 179 Gross mis-statement of evidence of fraud 180 Claimant limited to amount stated 203 Of Claim. Must be stated in notice of lien 304 If not stated liens void 205 ANSWER BY Owner. As to the nature of defences by. See Depences. Contents of 272,273 Form of 273, 323 By Claimant. Under New York City Act, form and nature of 283 Under the State Act may set forth his own claim 338 APPEALS from lien judgments. General rules applicable to 297, 348 Will not stay proceedings under the State Act 348 APPEARANCE, Notice OF 273 APPORTIONMENT. See MABSHALiNa. APPLICATION OF Payment. See Payment. Op Materials. See Work and Materials. APPROPRIATION. See Payments. APPURTENANCES. Definition of 93 What are included in the term 94 Lien attaches for work or labor upon 93 Work upon, covers main building 115 INDEX. 497 APPURTENANT. Page Laud is, to bailding 113 BuiIiDlNas, lien covers all 115-117 What are appurtenant to each other and what are not. . .114-116 Must be used for coninion purpose and necessary to each other 113 Land, extent of, appurtenant to the building 113, 134 See Propebtt Chaegbable. AREA OF LAND SUBJECT TO LIEN. See Pkopbbtt Chargbablb. ARCHITECTS. Are special agents of owner 45 How far owner is bound by, without special authority 45 Entitled to lien under civil law 9 ASSIGNEES may enforce a lien 20 May acquire lien by filing in name of assignor 23 ASSIGNMENT. Op Payment by contractor prevents sub-contractor from acquir- ing lien 141 By Owner before filing usually avoids a lien 61 But not under New York City Act 53-55 And see Chapter XII. Fraudulent, effect of 53 For Benefit of Creditors. By contractor,, rights of sub-contractors under 74 By owner, effect of 53 ATTACH. When lien commences to. See Time and Notice of Lien. ATTACHMENTS. Distinction between, and mechanic's lien 181 BANKRUPTCY. Suspends the lien 188 Does not discharge it, if filed in good faith before adjudica- tion 181-183 When lien may be filed after adjudication 182, 184 The rule where lien is created by filing the notice 184 Cannot be filed after adjudication in such case 184 BILLS AND NOTES. See Notes. BILL OF PARTICULARS. Form of 321 Under State Act to be verified and served with notice 316 And notice, must contain all elements of ordinary complaint. 316 As exhibit, annexed to complaint 363 Bridges. General Acts in relation to 493, 493 " " not applicable in New York City 85 Distinction between private and public bridges 96, 97 Are public bridges protected by public policy from liens ? . . 96 498 INDEX. BUFFALO CITY. Pagb Statute REauLATiNa LiBNS IN 409 "BUILDING CONTRACTS." Definition of 38 When vender in, is owner 38-31 •• BUILDER'S LOANS." See " Building ContSacts." BUILDING}, Destruction of. See Dbstkuction of BorLDlNa. Definition of 86 What is included in the teem 86 Distinction between " Structure " and " Building " 86 Must be intended for habitation or shelter 86 Must be an inclosure 87 Must be attached to the freehold 87 Floating dock, not a building 87 Wharf boat, or floating warehouse is, if attached to soil and permanent 88 Fixtures, when buildings are 89 Materials, " " " 91,92 Effect of the State Act, amendment of 1875 93 Appurtenant, What are, to each other. See Appurtenant. Separate Contiguous Buildings erected under single contract may be included in one lien 117 As to application of this rule, see Property Chaegbable. Public, Exempt from liens 95 Buildings protected from execution cannot be sold under lien law 95 Neither can buildings devoted entirely to the public use and under public control 96 Effect of New York City Statute 237 And see Public Property. CANADA (P. Q.) Lieu law in 13 Follows Civil Law System of French Code 13 CANALS. When exempt from liens 97 CASES. Tableof v. CERTIFICATE. Discharge of lien by 351 CHARGE. Upon Lands. See Lien. CHARGING LIENS. Definition and division of .7 Mechanics' liens are 8 CIVIL LAW. Mbchanicb' Liens under 8 Who are entitled to 9 INDEX. 499 Civil law. — Continued. Paqb Mechanics' Liens. For what work and materials 9, 10 How enforced 9 Apportionment of payments under .' . . .132-134 CIVIL LAW STATES. Mecliauics' Liens in 11 CLAIM. Notice op. See Notice. Form of notice of. See Forms. See also Joint and Several Claims. Statement of, in notice 205 CLAIMANTS^ Definition of 16 Who are proper parties. See Parties. Name and residence of, must be stated in notice of lien 204 Several may unite in complaint under New York City Act 365 Form of complaint by several 266 When defendants may allege their own liens ' 288 Form of answer by 283 COLLATERAL SECURITY. Effect of, upon lien 152-160 COLLUSION. Between husband and wife, to defraud creditors, effect of . . . . 42 Between grantor and grantee, to defraud claimants 53 How deed executed by, avoided 52 And see Fraud. COMMENCEMENT OF LIEN. See Notice of Lien. COMMENCEMENT OF LIMITATION. For filing notice of claim 190-197 COMMENCEMENT OF SUIT. See Practice. COMMENCEMENT OF WORK. Under New York City Act, Lien commences from, as to grant- ees, etc 215 But not as to recorded encumbrances 317 COMMON LAW. Mechanic's lien on real estate unknown to 13 COMPLAINT. Under New York Citt Act. General principles in relation to 351 By sub-contractor, forms of 252, 258 By contractor 264 By several claimants 266 Under Kings and Queens Act 802, 304 COMPLETED BUILDINGS. When used in completing other structures are " materials ". 92 But not when sold, and used as independent structures 91 Except where repaired upon the premises 93 500 INDEX. COMPUTATION OF TIME. Page The genbkal rule 199 Where expiration falls on Sunday 200 Of Sunday as intervening day 301 COMPLETION OF CONTRACT. Contractor must iile lien within sixty days from, under New York City Act 317,318 Sub-contractor thirty days thereafter 319 CONSENT of owner necessary to charge the lien 30 CONSTRUCTION. Of Term " Any Person " 17 "Contractor" and " Sub-contractor" 16 '■ Buildings " 86 "Lot"... 113-116 Of Statutes in reference to repeals when, must be strictly con- strued 237, 238 CONTRACTS 56-83 Implied contracts 61-66 Requisites of 63-67 Must be explicit 63-66 Must precede performance 65 Implied assumpsit not sufficient 66 Need not be for cash 67 Must be legal 69 Must be certain 69 Proof of application under 70 Covenant against liens, efEect of 71-77 Performance op 73-78 Abandonment, efEect of 73 Abandonment as sub-contractor 74 Substantial performance 75 Deviations from, effect of 75-77 Excuse for non-performance op 77 Waiver 77 Completion by owner, effect of 78 Default of the owner 78, 79 Fraud of the owner, effect of 79-81 Mutual mistake 81 Rules of Construction 83 Waiver of lien by express 149 Eifect on sub-contractor 150 Entire Contracts. Time for filing lien, commences at expiration of. ..... . .197, 198 Distinct Contracts. Effect of, on limitation of time to file lien 193 Must be attached to notice of claim under New York City Act 318 CONTRACTING OWNER. In general 51 And see Owner." INDEX. 501 CONTRACTORS. Page In general. See Parties. Time for filing claim by 218 Entitled to lien although entire contract is sub-let 18 Bound by all the conditions of building contracts 70, 71, 149 CORPORATIONS, entitled to a lien 24 Municipal, when not entitled to a lien 24 COSTS. Under New York City Act 234-236 Rests in discretion of court 234 Exceptions to this rule 236 When plaintifE is condemned to pay 235 Under State Act, in discretion of the court 260 CO-TENANTS. See Joint-Tenants. COUNTER-CLAIM. See Set Off. COUNTY COURT has jurisdiction under State Act 316 COUNTY CLERK. Lien to be filed with 222, 243 Fee of, for filing 242 Duties of, in respect to liens, are prescribed by the several statutes. See Statutes. COURTS, Jurisdiction of, under New York City Act, only Courts of record have jurisdiction 225 This deprives District Courts of 226 Under State Act, Supreme and County Courts have juris- diction, if claim exceeds fifty dollars 316 If under two hundred dollars. Justice Court has jurisdiction 845 Justice, Jurisdiction of 345 Proceedings in 345 Distinction between Justices and Justice Courts 345 Form of notice to enforce lien in 346 Answer and trial in 347 Nature of judgment and execution 347 Form of afiidavit of service and default 848 Owner's notice to produce claims in 358 COVENANTS. Against liens, effect of 71-73 And see Waiver. By contractor binding on sub-contractor 71 As to architect's certificate, how avoided 71 As to forfeiture for delay, effect of 71 COURTESY, TENANCY BY. When chargeable with lien 36 CREATION OF LIEN. See Notice of Lien. DAY'S WORK. Time for filing the claim in the case of 196 No lien, if under general employment 19 502 INDEX. DAY'S WOUK.— Continued. i"*™ Complaint by several lienors for 366 When lien cannot be founded upon 63 DEATH OF OwNEB will not discharge the lien 38,181 Will prevent acquisition of lien after his decease 37 Of Contractok, not prevent sab-contractor's lien . . 23 Of Claimant, after lien filed, efEect of 23 DEBT. Legal acceptation of 57 The foundation of the lien 57 Payment of, discharges the lien 125 Merger of, does not affect the security .' 164 DEBTOR, the owner must be a 57 Note of, efEect of accepting 156 DECREE OP FORECLOSURE. See Judgment. DEFAULT OF Contractok, prevents a lien under the contract 73 Of Claimant to commence proceedings after notice by, owner. . 356 DEFENCES. See Payment, Set Off and Counter Claim, Waiter, Es- toppel, Merger, Bankruptcy, Destruction of Build- ing, Willful Mis-btat!bmbnt of Lien, Fraud. DEFENDANT, appearance and proceedings by 270 DEFINITION of lien 7,8 Mechanic's lien 8 Claimant, § 1. Contractor, § 1. Sub-contractor, § 1. Laborer, § 1. Material, § 1. Of term, " any person," § 3. Owner, § 14. DEPOSIT. Discharge of lien by 352 DESCRIPTION OF THE PROPERTY. In Notice op Lien 208 Must establish its identity and extent 208 Street number, when sufficient 309 Diagram of lot charged, should be inserted 209 Designation should only apply to premises in question 209 Examples under this rule 209, 310, 211 Description insufficient, if it applies to other property 211 Sufficient if it enables one familiar with the locality to iden- tify it to the exclusion of other property 211 The rule under the New York City Act 220 In Complaint or Notice to Enforce Lien 209 Must be by metes and bounds, and sufficient to determine ac- curately, the premises to be sold 209 Form of. See Forms, Notice of Lien, Complaints, and Prac- tice. INDEX. ■ 503 DESTRUCTION OR REMOVAL OP BUILDING. Page In Pennsylvania, discliarges the lien 171 The reasons for this rule 171 Claimant may insure and protect his rights 173 This rule followed in New Jersey 173 And founded in the Roman system 174 But the contrary doctrine prevails in Illinois 170 The true equitable rule 174 DISCHARGE of the lien. Causes for in New York City 231-233 Forms of, in general. By satisfaction piece 351 By deposit of money , 353 By filing security 353-355 By proceedings by the owner— Notice and default 356 Form of Notice under State Act 356 Proof of service and default 357 Proceedings in Justice's Court ; . . . 358 Notice and order to show cause in New York City 359 Notice under Kings County Act 800 Proof of service and default 301 Order of discharge 301 DISTRICT COURT, In New York City, has not jurisdiction 236 DOWER. Inchoate right of, not lienable 34 Lien against husband will not affect 35 After assignment of, wife may charge 34 DURATION OF LIEN under the several acts 350 ENFORCEMENT OF CLAIM. By action under New York City and Kings and Queens Acts. ... 314 By Special Pkocebdings under thfe other Acts 314 Mode of Enforobment. See Practice. EQUITABLE CHARGE. Work done upon real estate of ,minor is 38 How enforceable 38 EQUITABLE TITLE. When sufficient to constitute ownership 38-33 EQUITY. Of laborers and material-men superior to those of coutrae- tors and owners 83 Lien attaches from commencement of work in 328-229 Court in, will enforce charge against minor's real estate when 38 EQUITY OF REDEMPTION. Chargeable with lieu 31 ESTATES, LIENABLE. See Parties, Owner, Property Charge- able. ESTOPPEL. WTien claimant is estopped from filing lien 163 Distinction between estoppel and waiver 163 504 INDEX. EXECUTION. Paob Under the State Act, general or special 344 Form of special execution under the Hen 344 EXECUTORS. Lien may be enforced against, if acquired in life of testator . . 38 Cannot charge property with lieu without they have title. ... 36 Owner should have personal interest in property charged. ... 36 EXEMPTIONS. See Ptjblic Propbhty. EXTENT OF TITLE. To create ownership 26 FIXTURES. Building subject to a lien on account of 89 The rule respecting 89 As against owner in fee, structure must be, to secure lien. . . 87 When buildings are, to the soil 88 When machinery are 90 FIRE. Destruction of building by, effect of, upon lien 171-176 And see Destruction of Building. FLOATING DOCK. When a " building " within the statute 87 FORECLOSURE OF LIEN. In New York, Kings and Queens Counties same as foreclos- ure of mortgage 336-237, 314 In other counties by special proceeding 314 And see Practice. FORFEITURE OP LIEN. See Discharge, Payment, Waiver and Estoppel of Lease. FORMS. Kings and Queens Counties Act. Notice of claim 298 By owner to commence proceedings 300 Affidavit of default 301 Complaint, contractor against owner 303 Complaint against several defendants 304 Report of Referee 307 Decree of Foreclosure 310 New York City Act. Notice of claim 243 Summons for relief 247 Notice of object of action 249 Lis pendens 250 Complaints by sub-contractors 352-258 Contractor 264 Several claimants 266 On contract for specific property 270 Notice of appearance 272 Answer of the owner 278 Lienor 283 INDEX. 505 FOUUS.—CmHnmd. Page New York City Act. Stipulation and order of reference 385 Order of reference on motion 286 Report of Referee 287 Decree of foreclosure 393 "State Act." Notice of lien by contractor 315 Sub-contractor 315 Notice to enforce tlie lien, by contractor 317 Sub-contractor 319 Bill of particulars 831 Affidavit for service by publication 223 Answer of tlie owner 828 Report of Referee 838 Short form 338 Judgment on Referee's report 389 Trial by the court 342 On default 343 Execution 344 Notice in Justice's Court 346 AfSdavit of default in game 348 Discharge op Lien. Satisfaction piece 351 By filing security, affidavit 358 Order to show cause 354 Order to file security 355 By notice and default. Owner's notice under State Act 356 Affidavits of service and default 357 Owner's notice in Justice's Court 858 Notice and order to stow cause under the New York City Act 359 FRANCE. Liens in 11 Extent of lien 11 Time for perfecting lien .• 11 FRAUD, BY Contractor. Nullifies contract and prevents lien 69 By Owner acquiesced in by contractor vitiates lien 69 Effect of fraud upon contractor by owner 79 Fraudulent over-statement of lien, effect of 177-184 FRAUDULENT CONTRACT. Is voidable only 80 Sub-contractors cannot treat, as void 80 Nor can they rescind or avoid it 80 LiaMlity of owner to contractor for the fraud not subject of lien by sub-contractors 80 FRAUDULENT SALE. By the owner how avoided in lien proceeding 53 506 INDEX. FRAUDS, STATUTE OF. PAas Nullifies lien if contract is within 69 GENERAL ACT. See State Act and Statutes. GRANTOR OF CONTRACTIMG OwNBE, wlien chargeable with lien 51 The rule, except in New York City 51 Effect of fraudulent sale 53 How avoided in lien proceeding 52 Under assignment for benefit of creditors 53 The rule under New York City Act 53, 313-216, 234 How affected by Blautblt v. Wood worth 53, 54 GREAT BRITAIN. No Mechanic's lien in 13 GUARDIANS. When may charge property with lien 36 Must be specially empowered by Court 36 General authority to keep ground in repair not sufficient to re- build on credit 36 Nor will special authority to build justify building on credit. 37 May bind building without charging general estate of the ward with the debt 87 May charge estate with lien for necessary repairs 37 HISTORY OP MECHANICS' LIENS. Under Roman system 8-11 In other countries..' ...11, 13 Under American system 12, 13 New York system 13, 14 HUSBAND, AdENCT or. May act as agent of wife 39 And as such, charge her lands 40 Even though he held himself out as owner 40 Such agency established only by affirmative acts of the wife. 40 Superintending work or ordering materials, generally suffi- cient 40 Rule established by Common Pleas, that proof of benefit of separate is sufficient 40, 41 Not presumed from marital relations 41 Nor by acceptance of rent from the building 41 Nor by mere acquiescence 41 Nor from acts naturally performed, if property was hus- band's 43 A question of fact for the jury 40 Effect of collusion, to defraud creditors 42 Rights of creditors of insolvent, against land of wife im- proved by him ; 42 Cannot charge wife's land against her will 42 Nor, it seems, by improving it. Without collusion or request,. 43 See also Mabbied Women. INDEX. 507 Fase IMPLICATION, waiver by 153 And See Waivbr. Kepbal by. See Rbpbal by Implication. INSURANCE, lienor may effect on building 173 INTEREST. To waive lien, how proven 153, 154 Claim may cover 179 la a lien on the premises and included in judgment. See Forms op Judgments. JOINT AND SEVERAL CLAIMS against Difpeebnt Buildings. When joint claim may be filed 115 Whenever buildings are used together and work done on all. 115 When appurtenant to each other 115, 116 When done for common benefit 117 Or under a single contract 117, 118 Although buildings owned by different persons 118 When several claims, must be filed 115 When BO unconnected as to be sold separate without injury. 115 Where there are separate contracts 118, 119 The rule under New York City Act 119 JOINT CLAIMANTS. Name and residence of each must be inserted in notice of claim under New York City Act 304, 319 JOINT OWNERS. Must be severally designated in notice of lien 307 JOINT TENANTS 'and TENANTS IN COMMON. When entitled to a lien 33 And when not 33 When charged with a lien 83, 84 Are each " owners," and may charge their separate interest 34 But not interest of co-tenant 84 Except for necessary repairs .' 34 Or authorized by them. . . ; 34 JUDGMENT. OP Foreclosure under New York City Act 336, 337 Form of 393 In Kings and Queens Counties 310 Form of 310-313 Under State Act 388-843 Form of, on Report of Referee 340 On trial by the Court 841 On default 343 Statutory provisions in relation to 388, 339 Transcripts of, may be filed 839 Lien upon all real estate as of the date of docketing 889 Personal Judgments, provisions for 339 Cannot exceed amount of claim 839 508 INDEX. JUDGMENT.— Conimweff. Page Judgment upon the Debt creates a Merges 164 Bat does not merge the securities 166 The lien remains as security for the judgment 166-168 Lien not waived by 169 Against Claimant, discharges lien 360 JURISDICTION. See CotTKTS. JUSTICE COURT. See Courts. KINGS AND QUEENS ACT of 1853 464 Of 1862 469 Practice under, similar to the New York City system 398 See Practice and Forms. LABOR. What is subject of lien. See Work and Materials. LABORERS, entitled to lieu 19 If rendered specially for or upon the building in question. . 19 And not under general employment 19 See Parties, Sub-Contractors, Work and Materials. LAND. On what area of, lien rests 120-124 See Property Chargeable, and Destruction of Building. LANDLORD. See Leasehold Property, Owner, and Parties. LAWS. See Statutes. LEASE. Agreement to, when chargeable with lien 49 See Leasehold Property. LEASEHOLD PROPERTY. Chargeable with lien 46 Lien attaches to the lease and also to lessor's interest in , building 46 When building may be sold under 46 Right of removal 47 Rule as to, in Ohio 47 The Kentucky rule 47 Right op Lessor when lien is against the lessee's interest 48 The mle as to termination of lease by, in Wisconsin 48 The Missouri rule 48 The Agreement to Lease, lessee in possession under, may charge his interest 49 When the rule will not apply 49 Power op Tenant to charge the fee, must be an actual agent of owner for that purpose 50 What facts must be shown to constitute such agency 50 Must constitute an implied contract between builder and owner 60 LEGAL TITLE. See Title. INDEX. 609 LESSEES. See Lea8ehold Property. Paoe LIEN, definition and division of 7 Op Mechanics 8 Under the Civil Law 8-11 " " " States 11 " " American system 13, 13 In New York State 13, 14 Amount op. See Amount op Lien. Notice of. See Notice op Lien. LIEN CLAIMANTS. Priorities among. See Priorities, and Claimants. LIMITATION OF LIEN. See Notice op Lien. Under New York City Act 234 LIMITATIONS, STATUTE OP. Nullifies lien, if contract is barred by 69 LIS PENDENS. Under New York City Act 334 LOSS OP LIEN. See Defences, and subjects cited, also Discharge of Lien of building. See Destruction op Building. LOANS of money not within the Act 9 LOT. Definition and extent of 113 See Property Chargeable and Area of Land. LUMBER. See Work and Materials. MACHINERY. When building is chargeable for 90 MARITAL EIGHTS IN PROPERTY. When chargeable with lien 36 See Married Women, Husband and Wife. MARRIED WOMEN entitled to a lien 35 May charge separate estate with lien 39 MARSHALING SECURITIES. Principle of 349 Applicable to mechanics' liens 349 MATERIALS. See Work and Materials. MECHANICS' LIEN. Definition of a 8 Only charges real estate 8 An American system 8 Founded in the Civil Law 8 Nature of, under Roman system 9, 10 Adopted in the Civil Law States 11 Does not exist in Common Law 13 American system originated in the City of Washington 13 New York State Laws 14 510 IHDEX. MECHANICS' LlEl!!.— Continued. Paob The Elements of a Lien. Chapter I. The Claimant 16-25 " 11. The Ownbb 26-55 III. The CONTBACT 56-82 " IV. The Work and Matbbials 83-111 " V The Pbopbktt Chargeable thbebwith 112-124 The Defences to a Lien. Chapter VI. Payment ; 135-141 " VII. Set off and Cotjnteb-Claim 143-148 " Vm. Waiteb 149-163 IX. Merger 164-169 " X. Destruction OB Hemoval OF Building.. 170-175 " " Fraudulent Accounts 175-180 " " Bankruptcy 180-185 The Perfection of a Lien. Chapter XI. The Time for Filing Notice 189-201 " XII. Form and Contents of Notice 202-311 The Enforcement of a Lien. Chapter XIII. The New Tobk City Act 312-341 XIV. Practice under " " .'...342-297 " XV. " " Kings AND Queens Act 398-818 • " XVL " " State Act 814^360 MECHANICS' LIEN STATUTES 363-501 And See Statutes. MERGER. Distinction between, and waiver 164 What is a merger 164 Merger by judgment only afEects the debt 164 Distinction between the debt and its security 165 Lien follows the liability, and becomes security for the judg- ment 166 Judgment on the debt does not waive the lien 167 MEXICO. Mechanics' lien in , 12 MINORS, entitled to lien 35 Real estate of, not chargeable 88 Except in equity 38 How enforceable in Equity Courts 38 Guardian of, cannot charge land with lien without authority. 36, 37 And see Guardians. MONET is not " materials " 84 Lenders not entitled to lien 32 MORTGAGE. Priority over mechanic's lien. See PeiobitieS. MORTGAGEE. In Possession may charge his interest with lien 83, 38 When, may charge estate of mortgagor 83 Not in Possession cannot be considered an " owner ". . ., 32 INDEX. 511 Paob MORTGAGOR, in possession may charge his estate with lien 33 NATURE OF LIEN. See Mechanic's Libn. NATURE OF PROCEEDING TO ENFORCE LIEN. See Fobb- CLOSURE. NEW TORK CITY ACT FOR 1875. See Statutes for former acts. §§1,2. The Lien, what work covered by 213 When lien accrues 313-316, 334 Extent of lien 314 § 3. The Ownekb, who may be 315 Land charged if owner at commencement of the building. 815 §§ 3, 14, 15. Pkiokity of Liens, as to other encumbran- ces '. 317 Inter be, 1st by class 227 2d by time 328, 239 Act is silent as to 328 The equitable rule .' 329 § 5. The Notice of Claim, time of filing .317, 318 Contents of notice, name and residence of claimants 319 Name of owner if known 219 The contract and description of the property 320 The verification of notice 220 § 6. Notice on Several Buildings 221 § 7. Filing of the Lien, duty of clerk. 222, 323 § 8. Limitation of Lien, Lis Pendens 824 §§ 9, 10, 11, 12. Mode of Enforcing the Claim 835, 227 § 16. Payment by Specific Property 330 § 18. Discharge of Lien ': 31-234 Forms applicable to 355-359 §§ 13, 19. Costs, principles applicable to 234, 235 § 20. Personal Action on contract, lien does not prevent. 336 § 81. Property Devoted to Public Use not lienable 336 § 33. Time for Taking Effect of statute 337 As to one year limitation of former act 338 Repeal by implication 339 Is the entire act repealed ? 339 General principles applicable to repeals 339 New statute covering entire subject works a total repeal. . 340 The U. S. Supreme Court rule 340, 341 Same applied to this Act 341 Intention of the legislators in 241 Practice Under. See Practice. Forms under. See Forms. Negotiable Paper. See Note. NOTE. Of Third Party, waiver of lien 153 Who is such third party ...".... 154 512 INDEX. NOTE.— Continued. Page Of Third Paktt. Of debtor neither pays nor waives lien 158 Without accepted with that intent 156 Neither will a, transfer of, discharge lien in New York State 156,158 If surrendered on trial 157 In some States the negotiation discharges lien 157 The Kentucliy rule in re discussed 158 Effect of accepting note due after limitation of lien 160 NOTICE OF LIEN OE CLAIM. No lien unless filed within the terms of the statute 189-203 Time for Filing the notice 190-201 Must be filed within statutory limitation 190 Commencement or Limitation 190 In New York City 190 At the completion of building 191 Or at completion of claimant's contract 191 Claimant may use either alternative 191 Giving credit does not extend limitation 193 May file lien any time within the limitation 193 Does not generally commence till claim is due 193 Generally commences when due 193 On each distinct contract or order from its completion 193 Distinction between separate and continuous contracts. . .193, 194 Separate accounts cannot be tacked together to form one. ... 194 The rule in the case of Spencer e. Barret 194 What is included therein 194 Not applicable to entire contracts 195-197 Application of same by the Courts 176 Distinction between furnishing materials and performance of labor 197 In latter case but one item and one performance 198 The rule in other States 199 Computation of Time 199-301 First day included and last excluded 199 When last day is Sunday must be filed on Saturday 300 Sunday as intervening day is never excluded 301 Contents of the Notice 303 Notice must include all the statutory requirements 203 Cannot be amended after filing 303 Nor waived by owner, to prejudice of third parties 303 The Address, contents of 303 Name and residence of claimant 304 Amoiwt of indebtedness, claimant limited to amount stated. 304 If no amount is stated there is no lien 205 Effect of over-statement. See Over-Statembnt. Person against whom claim is made 305 Statement OF Claim, mode of 305, 306 INDEX. 513 NOTICE OP LIEN OR ChAJM.— Continued. i-a™ Application to the building 206 Descbiption of premises 208-311 And see Description op Property. Name of Owner 207 Joint owners, severally designated 207 What variance is immaterial 207 The rule under the New York City Act 208 Must be inserted " if known " 208 Under the New York City Act. See also New York City Act. Form of Notice. See Forms. NOTICE TO ENFORCE LIEN. Under several acts, except New York City and Kings County, correspond to summons and complaint 314, 316 Contents of 316 Form op. See Forms. NOTICE BY OWNER. Esquiring Claimant to Commence Pbocebdings on Lien. . 356 Under State Act proceedings must be commenced within twenty days from service of 356 Within thirty days under King's and Queen's Act 300 And ten days in New York City 356 Form op, under State Act 356,857 Under New York City Act 359 Under King's and Queen's Act 300 To Present Claims. Under State Act 358 NOTICE OF APPEARANCE 271 Form of 273 OBJECT OF ACTION. Summons and notice of 349 OMISSION OF KNOWN CREDITS, efEect of 175 ONONDAGA COUNTY. Act applicable 477 Amendment of 479 ORIGIN OF MECHANICS' LIEN in the United States 13 OVER-STATEMENT of Account, efEect of 175-185 And see Account. Of Debits, efEect of 179 Discharges lien if willful 180 Op Land included in lien, EfEect of 131 OWNERS. See Parties. Name of , must be inserted in notice of lien 207 What is a sufficient statement of 307 Joint Owners, severally designated 207 What is suf&cient under the New York City Act 308 Who may be, under the New York City Act 315 33 514 INDEX. OWS'E^S.— Continued. Pa™ May be charged if owner at commencement of the work. . . . 316 Cannot charge their own building with lieh. , 23 Appearance and Answeb of. See Pkactice. PART 1 5-186 " II 189-260 III 261-439 PARTIES TO THE LIEN. The Claimant, in general; 16 Meaning of the term " any person." 17 The contractor 18 The sub-contractor, labor and material man 19 General employment 19 Agents 20 Assignees 20-22 Money-lenders 32 Personal representatives 22 Joint owners, tenants in common 23 Corporations 24 Minors and married women 25 The owner Who is 26 The extent of title necessary 36-27 BfEect of 'legal title 27 " " equitable title 31-32 Vendor and vendee in agreement of sale 38-31 Equity of redemption 31-32 Estate of mortgagee 32 Joint tenants and tenants in common 33-34 Dower interest 34r-35 Estate by courtesy 36 Guardians, trustees, and executors 36-37 The estate of a decedent 37 Minors 38-39 Married women 89-43 Proof of husband's agency 40-42 Agents 43-45 Architects, superintendents, etc 45 Lessees 46-51 Grantees of contracting owner 51-55 PARTNER. When lien may be filed by one, upon firm contract 21 PAYMENT AS A DEFENCE 135-141 Absolute Discharge, when 135-127 Affects all the parties to the lieu 135 When made in good faith before maturity 126 But not when made by collusion 126 Nor when made after claim is filed 136 Appropriation of, by Act of Parties 127-131 INDEX. 515 PAYMENT AS A DEF'El'iCK— Continued. Page The debtor has first right of application 137 Creditor may apply if he neglects 138 Time for making application. 138 Mode of signifying same 130 When creditor cannot make 130 APPBOPniATION BY THE COURT 131 Equitable principles govern 131-183 The Roman system of 133-134 Where followed 134 New York State rale 134-135 How far civil law is followed 135-136 The American rule 187-139 Wlien payments made by act of law 132 Assignment of, effect of 149 Burden of Proof of 140 PERFORMANCE OF CONTRACT. See Contract. PERSONAL ACTION on the debt. Mechanics' lien does not prevent 336 PERSONAL REPRESENTATIVES. When entitled to lien '33 PERSONAL JUDGMENT. Under State Act 340 Effect of failure of lien upon 839-843 PERSONS ENTITLED TO MECHANICS' LIEN. See Parties and Claimants. PLEADINGS. See Practice. PRACTICE. Under New York City Act 342-397 Preparation and filing notice of claim 343 Form of notice 343-346 The summons and its service 347, 348 Notice of object of action 249 Notice and filing of Lis Pendens 350 The complaint 351 Form of Complaint by sub-contractor 353 Same, another mode of statement 357 Complaint by contractor 364 " " several claimants 265, 366 " on contract for delivery of property 370 Proceedings by Owner 371 Notice ofv appearance 372 Answer 373,373 Answer by a Lienor 883 The Reference 385 Stipulation and order of 385, 386 Order of, on motion 386 Report of referee 387 516 INDEX. VRACTICB.— Continued. Paob JuD(jMENT of foreclosure and sale 293 General principles of practice under 297 Under Kikgs and Qukbns Act 298 Similarity of, to New fl'ork City Act 398 Notice of claim 298, 299 Notice by owner 299-300 AfBdavit of service of, and order for discharge of lien 300, 301 General principles applicable to the enforcement of the lien . 301 The Complaint by contractor. 303 Same against several defendants 304 Kefereb's Hbpokt 307 Judgment of Fobeclosure and Sale 310 Under State Act 314 Similarity between, and the BufEalo, Rensselaer and Onon- daga Acts 314 Notice of Lten by contractor 815 " "by sub-contractor 315, 316 Method of Enforcement 316 Notice by Contractor to Enforce Lien 817 Notice and bill of particulars by siib-contractor 319 Service of same 331 AflBdavit for service by publication 333 The default 323 The Answer 323-333 The Trial of the issues 333 Report of Rbferbe 333 Same, short form 836 The Judgment, general principles regarding 337, 338 Personal judgment 339-341 Form of judgment on reference 341 On trial by the court 343 On default i 348 Execution, f ormj and nature of 845 Cost and appeals 348 Proceedings in Justice's Court. See Court. " " Discharge of lien. See Discharge. PREFACE 6 PREFERENCES. See Priority. PRIORITY. Under New York City Act. Encumbrances recorded before filing claim entitled to 317 Priority of notice gives priority of lien 217 Conveyances executed after commencement of work, subject to lien 313-216 Claimants by Class, sub-contractors take precedence over con- tractors 327, 228 By Time of Piling. All claimants of same class take prece- dence by 328, 230 INDEX. 517 PRIORITY. Under New Tore City Act. — Continued. I'-'oe True equitable rule, places priorities by commencement of work 230 Under other Acts. By time of filing. PROCEEDINGS to enforce the Lien. See Practice. PROMISSORY NOTES. See Notes. PROPERTY CHARGEABLE 112-124 Area of land covered by tke lieu 120-124 The rule in New Jersey 114 Enough to secure the debt 114r-121 Effect of over statement in the claim 121 The rule under the State Act 123 " " in the case of leaseholds 124 General rule, all property necessary to the use of the build- ing 113-116 " Lot," meaning of 113-115 Separate Buildings, when covered by one lien 115, 120 Must be appurtenant to each other 115 The Wisconsin rule 117 When work done for common benefit of all 117 " erected under single contract 117 Effect of New York City Act of 1875 117, 118 PROPERTY DEVOTED TO PUBLIC USB. See Public Property. PUBLIC PROPERTY. Protected from mechanics' lien 95 Rule applicable whenever protected from sale under execution 95 Public school-house and county buildings protected 95 Property of public corporations shielded in some States 95 Including railroads and bridges 96 Public bridges within the rule 96 Distinction between public and private bridges 96 How affected by the general amendment of 1872 96 Railroads and canals under State control when within 97 What property is not within the rule 97 Right of sub-contractors in such cases 98, 99 The rule under New York City Act 286, 237 RAILROADS. When lien will cover 97 REAL ESTATE. Mechanics' lien only applies to 87 See Land, Property Chargeable. RB-COUPMENT. See Sbt-Ofp. REMOVAL OF BUILDING. See Destruction or Removal of Building. REPUGNANCY. Estops Hen on principles of waiver 151 518 INDEX. RENSSELAER COUNTY. Pagb Act applicable to 480 RENTS. See Leaseholds. REPEAL OF STATUTES. Effect of, upon existing liens 338 By Implication, general rule 239 When former act repealed only to extent of inconsistent pro- visions 339, 240 Total repeal of last act covers entire subject-matter 240 And wbere so repugnant . tliat both systems cannot stand to- gether , 240 The rule adopted by the United States Courts 240 Total repeal where statute prescribes the only rule to gov- ern 241 Application of the rule to Act of 1875 241, 242 ROMAN LAW OP LIENS. See Civil Law. SALE. See Judgment, and Bxectjtion. Agreement of. See Agreement op Sale. By Owner. See Grantee. SATISFACTION AND DISCHARGE of Lien 851 By Payment. See Payment. SCHOOL HOUSE. Wlien exempted by public policy 94 PHvate, is not 97 Where normal school buildings are not exempt 97, 98 SECURITIES. Additional, a waiver of lien 153 Discharge of lien by filing 352 Marshalincr, applicable to liens 349 SEPARATE BUILDINGS. See Buildings, Joint and Several Claims. SET-OFF AND COUNTER-CLAIM 143 Against the Contractor's Claims 143 Need not arise out of the same contract 143 Any defense against his claim is available 143 Same rule applies between contractor and sub-contractors. . . 142 Against Sub-Contractor's Claim 143-147 Allowed if it arises out of lien-contracts 143 Although subsequent to the lien 148 If it arises de fiors the contract, giiere 143-147 What Claims may be 147 Tortious acts cannot 147 Without they grow out of the contract 147 SEVERAL BUILDINGS. Notice upon, under New York City Act 221 See also Buildings, Joint and Several Claims. INDEX. 519 SIDEWALK. Page When construction of, will charge contiguous lots 94 New York City and State Acts covers 213-463 SPAIN. Mechanics' lien in 13 SPECIFIC PROPERTY. Contract for payment by, lien will apply to in New York City 230 Complaint in such case 370 STATE ACT. (Includes the entire State, except counties of New York, Kings, Queens, Onondaga, Rensselaer, and the City of BufEalo, com- monly known as the General Lien Law.) See Statutes. Forms and proceedings under, see FoBMS and Pkactice. STATUTE OF Frauds, when contract is within, lien is void 69 Of Limitations, Contract barred by, nullifies lien 69 STATUTES. Buffalo Act (1871) 409 Cities Act (1844) 400 Amendment of, 1851 407 General Act (1870) 493 " (1873) 493 See also State Act. Kings County Act (1853) 464 Kings and Queens Act (1862) 469 New York City Act of 1830 363 Amendment of 1833 365 New York City Act of 1844 363 Amendment of 1845 373 New York City Act of 1851 374 Amendment of 1855 379 New York City Act of 1863 383 Amendment of 1866 389 " 1868 390 New York City Act of 1875 393 Onondaga Act (1864) 477 Amendment of 1866 479 Rensselaer Act (1865) 480 State Act of 1854 429 Amendment of 1858 439 " 1869 '. 440 " 1870 443 " 1871 443 " 1873 444 " 1873 445 " 1874 461 " 1875 463 520 INDKX. STAVVTES.— Continued. I'aos Westchester Act of 1851 417 Amendment of 1853 433 Westchester Act of 1853 423 STAT OF PROCEEDINGS. Appeal under State Act does not create 348 STIPULATION AND ORDER OP REFERENCE 285 STIPULATIONS IN CONTRACT. See Contract. SUB-CONTRACTOR. In General. See Pakties and Claimant. Definition of 16 Time for filing claim by 218 Provided for, under every statute 19 Lien of, not enforceable without money due from both owner and contractor 19 When bounded hy stipulations in building contract. . .71, 72, 150 Not bound by set-off against contractor de hors the con- tract 143-147 SUBROGATION. Principles of, applicable to liens 350 SUBSTITUTION, Equitable. Applicable to mechanics' liens 350 SUMMONS FOR Relief under foreclosure 347 Service of same 247,348 SUIT. See Practice. SURETY. Subrogation between principal and 349 Applicable to Mechanics' Liens 350 TENANTS. See Lessees and Leaseholds. TENANTS IN COMMON. See Joint Tenants. By Courtesy. See Courtesy. TIME. Computation of. See Computation of Time. Within which notice must be filed. See Notice of Likn. For commencement of proceedings. See Practice. TITLE, extent of, to create ownership 26 TRIAL. See Practice. TRUSTEES OP AN EXPRESS TRUST. When may charge estate with lien 86, 37 UNITED STATES. ' Origin of mechanics' liens in 13, 18 VENDEE. Under agreement of sale, when chargeable as owner 38-30 INDEX. 521 VENDOR. P^«^ Under Askbbmbnt op Sale, when chargeable as owner 28-30 VENDOE'S LIEN. Under the civil law 9 Mechanics' lien enforced the same as. 9 Comparison between, and mechanics' lien, in respect to waiver 154 VERIFICATION. Of Notice. See Notice oe Libst. Op Pleading. See Pbactice. WAIVER OF LIEN. By Express Agreement 149-133 When waiver arises 149 Once waived cannot be regained 149 Contractor's lien only waived by express covenant not to file lien 149 What covenants do not amount to 150 How far sub-contractor governed by stipulations against liens in building contract 150, 170, 171 Cannot plead want of knowledge of terms of contract 151 Cannot enforce lien if repugnant to building contract 151 What is so repugnant 151, 153 By Implication op Law 152-163 When additional security amounts to 1.52 By accepting property or guarantee of a third person 153 The note or personal security must be given by a third party 153 The debtor's firm or co-partner is such third party 153 Must be accepted with intent to waive the lien 153 How such intent may be shown 154 Contract for security must be accepted and performed to amount to waiver 155 Effect of accepting debtor's note 156 Extension of credit beyond limitation of lien a waiver 160 When the acceptance of debtor's time note amounts to such extension , 160 Distinction between waiver and estoppel 162 Specific cases of waiver and estoppel 162, 163 Judgment upon the debt does not waive the lien 167 WARE-HOUSE, FLOATING. When a "building " within the statute 88 Wharp-Boat. When a " building " within the statute 88 WOMEN. See Married Women. Husband and Wipe. 522 INDEX. Pagb WORK AND MATERIALS 83-111 Lien will Cover. All that enters into the contract 83 Or ordinarily used in building 83 Incidental Expenses 88, 84 Blasting for foundation 83 Powder and fuses for same 83 Building derricks and hoisting materials 84 Carting to and from the building 84 Monet is not materials 84 Buildings, what are 86-89 Appubtbnances, what are 93 FiXTUBES, when Materials 89 Entire Structures when materials 89-93 Public Property, lien will not cover 95 What property within the rule 96-98 Effect of rule upon sub-contractors 98-99 Application op ' 100-111 Pennsylvania rule 100-103 Where adopted 103 The delivery under 104 Exceptions to 104 Illinoisrule 105-107 The equitable rule 107 New York State rule 108,111 EKR AT A. Quite a number of mistakes have crept into the foregoing pages. Being too palpable to mislead and too numerous to repeat, they are not herein indexed. Errors of judgment in the construc- tion of the work ; or of law in the construction of the statutes, are, ex necessitate, fathered. All other slips the Author charges to his publisher, the publisher to his printer, the printer to his « devil." KFH 5229 k68 Author Vol. Kneeland, S.F. Title Copy Mechanic's Liens with forms Date Borrower's Name •m<:Vvr«iSSSmSSi\5S& i